Surrogate Mother Keeps Baby and Gets Child Support
A surrogate can change her mind and refuse to give up the babe. Cases such every bit this are rare but they tin can happen.
Our surrogacy solicitors know this will e'er be a lingering worry for any prospective parents because it as a means of starting a family.
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Surrogate Parents' Rights
In England and Wales, the law regards the birth mother as the child'southward legal mother, even if she is a surrogate. If married, her spouse/civil partner would also exist recognised as a legal parent.
So what's the solution if the surrogate decides to keep the baby? The intended couple will have to consider their options and more probable apply to the Family unit Courtroom for a Child Arrangements Guild.
The normal remedy in an uncontested surrogacy system would be to use for a parental guild. This assigns legal parenthood and confirms who is responsible for the child. Notwithstanding, i of the weather condition for this is that the surrogate must give her consent. If the surrogate does not consent, the court may all the same award custody of the child to the intended parents but cannot make them the legal parents.
What If The Surrogate Mother Changes Her Mind Later on The Baby Is Born?
The showtime thing to do will exist to plant the legal parenthood of the parties before deciding the best legal remedy: These can be complex but the nuts are:
- single surrogate – the biological father of the child can be named on the birth certificate and would therefore exist the child's legal father with parental responsibility
- married surrogate – the surrogate's husband is the legal father (unless that is after changed by a parental order), leaving the intended parents in a legal vacuum
- surrogate is in a civil partnership – the same rules utilise equally if she were married
- surrogate has a long-term partner – the partner is not the kid'south legal parent then the intended biological father could be named on the nativity certificate.
If the surrogate wants to keep the baby in any of these cases, the intended parents must consider their options.
Potential Pitfalls
Applying successfully for a parental order can take betwixt half-dozen and nine months. And if the surrogate and her husband/ceremonious partner do non give their consent then your application could be doomed to fail.
Consent must be given at to the lowest degree six weeks later on the birth (giving the surrogate a cooling-off catamenia). Unfortunately for the intended parents, those vi weeks give the surrogate time to bail with the kid – maybe increasing the chance of them deciding to keep the babe. However, in virtually surrogacy arrangements it would exist very unusual for the baby non to be handed over immediately subsequently beingness born.
Then what's the indicate of all the fourth dimension, expense and stress of applying for a parental guild if the surrogate can simply dismiss your attempts by refusing consent? Unfortunately, UK surrogacy law is in drastic need of reform.
And what can y'all exercise if the surrogate refuses consent? All is not lost. Yous could apply for a Kid Arrangement Club. In this situation the court would consider the Welfare Checklist.
This checklist includes:
- the child'southward concrete, emotional and educational needs
- their age, background and any other characteristics the court considers relevant
- the ability of the surrogate (and married man/civil partner) and the intended parents to meet the child's needs.
You lot may feel that the law as it currently stands is loaded confronting the intended parents and in favour of the surrogate/birth female parent.
But in practise the child usually ends upwardly with the intended parents, fifty-fifty if the surrogate is named every bit a legal parent.
So the surrogate could argue that the police force is loaded against them.
Surrogacy Abroad – What If The Birth Mother Is Not From The United kingdom?
Some couples contemplating surrogacy wait at the options abroad. They ofttimes choose a surrogate in the United states (an expensive choice), Ukraine, Bharat or Thailand.
In each case yous will be governed past the police force in that state. Often – specially in the U.s. – the law is better suited than the current UK legislation.
In California information technology is possible to confirm the legal parenthood of the child before he or she is born – removing the problem of a surrogate deciding to keep the baby.
That all sounds wonderful in theory but if you go through surrogacy abroad y'all will nevertheless have to employ for a parental order in the UK. That is considering this country does not recognise other countries' surrogacy laws.
So you could be named the legal parents in California just non here in the UK. And the surrogate could go on the child.
Get Good Legal Advice
Surrogacy law is complex and fraught with pitfalls. Become good legal advice from Coles Miller Partner Richard Perrins, head of the Family Department and a specialist in surrogacy and fertility law, 01202 355698.
Source: https://www.coles-miller.co.uk/news/blog/can-a-surrogate-mother-keep-the-baby-flb.html
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