Can A Surrogate Mother Keep The Baby?15th Jun 2018
A surrogate can change her mind and refuse to give up the baby. Cases such as this are rare but they can happen.
Our surrogacy solicitors know this will always be a lingering worry for any prospective parents considering it as a means of starting a family.
Surrogate Parents’ Rights
In England and Wales, the law regards the birth mother as the child’s legal mother, even if she is a surrogate. If married, her spouse/civil partner would also be 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 than likely apply to the Family Court for a Child Arrangements Order.
The normal remedy in an uncontested surrogacy arrangement would be to apply for a parental order. This assigns legal parenthood and confirms who is responsible for the child. However, one of the conditions for this is that the surrogate must give her consent. If the surrogate does not consent, the court may still award custody of the child to the intended parents but cannot make them the legal parents.
What If The Surrogate Mother Changes Her Mind After The Baby Is Born?
The first thing to do will be to establish the legal parenthood of the parties before deciding the best legal remedy: These can be complex but the basics are:
- single surrogate – the biological father of the child can be named on the birth certificate and would therefore be the child’s legal father with parental responsibility
- married surrogate – the surrogate’s husband is the legal father (unless that is later changed by a parental order), leaving the intended parents in a legal vacuum
- surrogate is in a civil partnership – the same rules apply as if she were married
- surrogate has a long-term partner – the partner is not the child’s legal parent so the intended biological father could be named on the birth certificate.
If the surrogate wants to keep the baby in any of these cases, the intended parents must consider their options.
Applying successfully for a parental order can take between six and nine months. And if the surrogate and her husband/civil partner do not give their consent then your application could be doomed to fail.
Consent must be given at least six weeks after the birth (giving the surrogate a cooling-off period). Unfortunately for the intended parents, those six weeks give the surrogate time to bond with the child – possibly increasing the chance of them deciding to keep the baby. However, in most surrogacy arrangements it would be very unusual for the baby not to be handed over immediately after being born.
So what’s the point of all the time, expense and stress of applying for a parental order if the surrogate can simply dismiss your attempts by refusing consent? Unfortunately, UK surrogacy law is in desperate need of reform.
And what can you do if the surrogate refuses consent? All is not lost. You could apply for a Child Arrangement Order. In this situation the court would consider the Welfare Checklist.
This checklist includes:
- the child’s physical, emotional and educational needs
- their age, background and any other characteristics the court considers relevant
- the ability of the surrogate (and husband/civil partner) and the intended parents to meet the child’s needs.
You may feel that the law as it currently stands is loaded against the intended parents and in favour of the surrogate/birth mother.
But in practice the child usually ends up with the intended parents, even if the surrogate is named as a legal parent.
So the surrogate could argue that the law is loaded against them.
Surrogacy Abroad – What If The Birth Mother Is Not From The UK?
Some couples contemplating surrogacy look at the options abroad. They often choose a surrogate in the USA (an expensive choice), Ukraine, India or Thailand.
In each case you will be governed by the law in that country. Often – particularly in the United States – the law is better suited than the current UK legislation.
In California it 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 you will still have to apply for a parental order in the UK. That is because this country does not recognise other countries’ surrogacy laws.
So you could be named the legal parents in California but not here in the UK. And the surrogate could keep the child.
Get Expert Legal Advice
Surrogacy law is complex and fraught with pitfalls. Get expert legal advice from Coles Miller Partner Richard Perrins, head of the Family Department and a specialist in surrogacy and fertility law, 01202 355698.