For all you Corrie fans you may well have been watching with bated breath the story unfold with the ‘baby triangle’ of Tina, Gary and Izzie and the recent birth of their surrogate baby little Jake or Joe depending on which mum your favour.
For those of you that don’t watch Coronation Street Tina agreed to have a baby for Gary and Izzie who were unable to conceive naturally. Tina agreed to be the surrogate mother and gestate the fertilised egg of Gary and Izzie’s. Following the birth, Tina initially claimed that the baby was hers and did not want to give the baby back to Gary and Izzie. However, the couple argued that the baby was biologically theirs and so by law they were the rightful parents. Little baby Jake/.Joe has now been returned to Gary and Izzie but Tina remains the aggrieved ‘mother’ and wants her baby back!
So then, who are the legal parents of a child born through surrogacy?
Under English law, the legal mother of a child born through surrogacy is always, at birth, the surrogate mother. This is simply because the law says that the woman who carries the child is the legal mother. If the surrogate is married, and the child is conceived artificially through IVF or artificial insemination at home, the legal father at birth is usually the surrogate’s husband.
This means that a potential "new father" does not have automatic claim to legal parenthood, unless, of course, it can be shown that the husband of the surrogate did not consent to the arrangement.
The situation is also the same for surrogate mothers who are in gay relationships. If they are in a civil partnership at the time she conceives, her same sex partner will be the child’s second parent to the exclusion of any future intended parent.
Couples to any surrogate mother have to apply for a parental order to ensure the future care of their child and to reassign parenthood should that surrogacy birth have taken place here in the UK. Couples need to ensure that the surrogate mother’s parental status is extinguished in order that full parental status and parental responsibility can be conferred on the new parents.
In Tina, Gary and Izzie’s case, Tina accepted a significant sum of money to be the surrogate. This is in fact illegal in the UK, as the laws surrounding surrogacy operate on a not-for-profit basis. Surrogacy agreements are also unenforceable in the UK. If Tina had indeed kept the baby then it would have been very difficult for Gary and Izzie to uphold any agreement between them if there had been one as it is not possible to enter into a legally binding surrogacy agreement here in the UK.
In an English case involving surrogacy, CW v NT and another , a couple, had entered into a surrogacy agreement with a woman who later sought to keep the child, applied for a residence order. The application was rejected and a residence order made in favour of the surrogate mother. The court found that the mother was better able to meet the baby's emotional needs and that there was a clear attachment between the mother and the daughter, such that removing her from her mother's care would cause a measure of harm.
It is no wonder that, as a result of the UK’s stringent legal restrictions surrounding surrogacy, a lot of would be parents look towards other countries where international surrogacy agreement are legally binding and can be enforced.
Whether Tina seeks the return of little baby Jake/Joe you’ll have to keep on watching the Street but in the meantime all parties concerned will be well advised to seek the advice of a good family lawyer.
For further advice you can contactour Family Team on 0113 246 0622.
Disclaimer: Anything posted on this blog is for general information only and is not intended to provide legal advice on any general or specific matter. Please refer to our terms and conditions for further information. Please contact the author of the blog if you would like to discuss the issues raised.