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Surrogate gives birth to her mother's baby

By Thea Dunne -

A young mother who had given birth to her mother's child featured in the Sunday Telegraph last week, in the most recent of family surrogacy arrangements to attract media attention.

Catherine aged 30, who is married with children of her own, agreed to carry a child for her mother Jacky Edwards, 47, who had recently remarried. The mother and daughter spoke to the newspaper about how Jacky and her husband Paul came to stay in Catherine's home for a week. Using plastic syringes and the measurement pots from children’s medicine bottles, Catherine was inseminated with Jacky's husband's semen twice a day.

Catherine successfully carried the child to term, eventually giving birth with Jacky and Paul with her in the delivery room. As Paul was the biological father, Catherine was able to subsequently sign a parental order recognizing Paul and Jacky as parents without them needing to adopt the baby.

Family surrogacy arrangements like theirs are not uncommon in the UK where commercial surrogacy is outlawed. There are stringent restrictions on how surrogacy arrangements can be advertised and the would-be parents cannot secure their parental status ahead of the birth with a contract.

From the baby's birth until the signing of the parental order, Catherine was his legal mother. In UK law the woman that gives birth to the child is always the legal mother, prior to adoption. This is the case no matter where in the world the child was conceived. The Human Fertilisation and Embryology Act 2008 is very clear on this point: Section 33 (1) HFEA 2008 provides, 'The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.'

As per section 35 of the same act, her husband was listed on the birth certificate as the child's legal father, even though he was not the biological father. This is because in UK law the surrogate's spouse will be considered a parent, unless they did not consent to the pregnancy.

No parental order has ever been refused but surrogates and their partners cannot be compelled by law to hand over a child to the intended parents simply because of a prior agreement. Furthermore single people cannot by law apply for parental orders; rather a couple in an "enduring family relationship" must apply jointly. However in one high profile case B, a 24 year old single, gay man, was granted an order to adopt A, his biological son by surrogacy and legal brother. Knowing her son was desperate for a child, B's mother agreed to be implanted with the embryo formed from a donor egg and her son's sperm. In the judgment Mrs Justice Theis noted that the arrangement was not one that the court or the clinic had previously encountered but was "entirely lawful". She was satisfied that "an adoption order will provide the legal security to A's relationship with B, which will undoubtedly meet A's long term welfare needs.

UK surrogacy law has been criticised for being undeveloped and unaccommodating. However there is currently little appetite in the general public for reform and widespread opposition to the kind of commercial surrogacy seen overseas. However with demand for fertility treatments rising and routes to international surrogacy closing up we should expect, in the coming years to see many more surrogacy arrangements like the one between Jacky Edwards and her daughter Catherine.

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Thea Dunne

Thea joined Vardags in September 2016. She read English at Trinity College, Cambridge and previously interned at Christie’s Auction House.