Surrogacy and Parental Order after Separation

September 4, 2017

A cohabiting couple had a child through surrogacy but separated during the pregnancy and the intended father no longer wanted to apply for a parental order.

In a recent case, anonymised as M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam), a cohabiting different-sex couple where the woman could not carry the child found a friend to be their surrogate. Both the intended mother and the intended father were the genetic parents. However, during the pregnancy the couple separated and the intended father no longer wanted anything to do with the child and did not join the intended mother in the application for the parental order. The surrogate handed the child to the intended mother shortly after birth, but the intended mother could not on her own apply for a parental order alone because only couples can apply. The legal parents were the surrogate and the intended father (presumably the surrogate was single). To allow the intended mother to exercise parental responsibility on her own, the court made the child a ward of court and made other order regulating the upbringing until the law is changed (later in 2017 or in 2018) to allow single parents to apply for parental orders.

What does not seem to be discussed in this case is, however, that here a single woman is finding herself bringing up a baby without the help of her former partner (as they planned). Presumably while he is the legal father, she can apply to the CMS and the courts for child maintenance and financial provision. However, once a parental order is made, she will be the only legal parent and will have no financial help from the intended father.

This sits in contrast to a case where a couple undergo IVF, for instance, with donor sperm. Even if they split up during the pregnancy, the mother’s partner and legal father will be financially liable for the child even if he wants nothing more to do with the child. This is although he has no genetic connection with the child. This is of course the same as in any case where a woman gets naturally pregnant from a man even if that is a “one-night stand”.

In jurisdictions where a surrogacy agreement is binding and creates the legal paternity, both intended parents would be the legal parents from birth. In such a jurisdiction the mother in this case would have recourse to financial provision from the intended father. So while parental orders for single intended parents will be welcome, they still leave a mother like the one in this case financially vulnerable.