In recent weeks, Viscount and Lady Weymouth have become the first members of the British aristocracy to have a baby born by surrogacy after Lady Weymouth faced health concerns during her first pregnancy. In its most orthodox understanding, surrogacy is an arrangement that dates back to Biblical times whereby surrogates conceived with their own eggs. In fact, this form of ‘traditional surrogacy’ still takes place now, providing a low-cost option for intended parents who cannot fund fertility treatments and turn instead to their family.
However, the UK legislation still lags behind the more commercial approach of the States where surrogates typically do not use their own eggs during the fertilisation process. The surrogate-friendly states like California tend to gravitate towards a more “hands-off” approach in order to minimise the emotional investment of the surrogates. It is thought that this is likely one reason why Viscount and Lady Weymouth chose to employ a surrogate from California where there are clearer and quicker resolutions of parenthood in comparison to the UK.
The UK’s representation of parenthood law provides a muddled and clumsy outcome for both surrogates and new parents, whereby Section 33 of the Human Fertilisation and Embryology Act 2008 makes every pregnant woman a legal mother by default, despite the genetic origins of the baby. This law can be deemed wholly sensible for women who conceive with donor eggs so to have their own family – it does however create unavoidable risk when considering surrogacy situations. This risk is considerably exacerbated by the disenfranchisement of the parental order until several months after the child is born. During this time, the birth certificate will reflect the surrogate as the mother and her spouse as the father, unless the surrogate is not married, at which point the biological father will be named on the certificate.
The consequences of this are far reaching. According to the Children Act 1989, at least one, if not both, biological/intended parents will lack authority to make decisions on behalf of the baby. Should the child be unwell, this will affect consequences such as medical treatment. More relevant for the case of Viscount and Lady Weymouth, the child will also have no right to inherit from the intended parents until they are legally recognised. It is therefore important that the intended parents have drafted wills in place during the interim period to cover the doubt regarding inheritance. Moreover, the surrogate parents are also financially responsible for the child, meaning that the surrogate has the right to pursue child maintenance claims in the interim period.
So what of this interim period of uncertainty? The well-organised state of California offers a pre-birth court process, transferring parenthood to the intended parents during the pregnancy. This allows for a more frank and upfront system where all matters can be resolved prior to the child’s birth. However, concerning Viscount and Lady Weymouth, it is important to note that they will not reap the benefits of the US pre-birth process once in the UK since English law requires a parental order application to be made regardless of a foreign court order declaring parenthood.
In summary, the current surrogacy system in the UK operates in a reactive state, manipulating a retrospective fit to families outside of the conventional norm. Further to this, judges are expected to rule on familial arrangements where the child is already in care of an opposing family.