Probate: What to do when someone dies
James and Lucas are a same-sex couple who have been in a relationship for 10 years and recently married in 2014. James is English and Lucas is Italian and they both live in London.
James and Lucas are about to have a child using an American surrogate who lives in California. They contacted us for advice about bringing their daughter back to the UK following her birth and to secure their legal status as parents following an international surrogacy arrangement.
A number of embryos were created using donor eggs and James’s sperm. The surrogate mother, who was not married, was due to give birth in two months. James and Lucas were in the process of applying for a pre-birth order in California, which would allow their names to be placed on their daughter’s birth certificate and recognise them as the legal parents in California. James’s and Lucas’s Californian attorney advised them to take English legal advice about the position here.
We explained to James and Lucas that, although they would be recognised as the legal parents in California following the pre-birth parentage order, this would not be the case in England. The surrogate mother would be considered the legal mother under English law and they would therefore need to make an application for a Parental Order on their return and to do so within six months of their daughter’s birth. We advised James and Lucas that this order would extinguish the surrogate mother’s rights and responsibilities and legally recognise them as their daughter’s parents.
Returning to the UK and obtaining a Parental Order
When James’s and Lucas’s daughter was born on American soil, she was entitled to an American passport. The family was therefore able to travel back to England with their daughter’s American passport. James and Lucas were concerned about being questioned at the UK border, especially as they were a same sex couple returning with a newborn baby. Our immigration team provided James and Lucas with a letter explaining the background to their daughter’s birth and that James and Lucas intended to apply for a British passport as soon as possible. They also assisted with the passport application itself.
Once James and Lucas returned to England with their daughter, we assisted them in obtaining a Parental Order. This involved an application to the High Court when directions were made for James and Lucas to provide statements in support of their application and for a Parental Order Reporter to prepare a report for the Court dealing with the question of whether James and Lucas had complied with the necessary conditions to enable them to obtain a Parental Order.
After a number of months, a final hearing took place at which the Court confirmed that it was prepared to grant a Parental Order in favour of James and Lucas. This Order means that James and Lucas are now recognised under English law as the legal parents of their daughter, ultimately extinguishing any rights of the surrogate mother.
Should you have any questions about the process of international surrogacy, please contact Connie Atkinson or Katie Newbury. You may also be interested in reading our Frequently Asked Questions page and previous blogs on surrogacy.
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