Surrogacy and separation – when relationships break down during the surrogacy journey

26 January 2017

Starting a family can be a wonderful and emotional time for any family, but when parents have experienced fertility issues and their journey to parenthood has been longer and more difficult, this can leave people feeling sensitive and fragile. 

Many couples are turning to surrogacy to create their family and in some cases this follows years of trying to become pregnant.  The decision to embark on surrogacy is a huge and important one and the surrogacy journey itself can also be stressful.  Parents feel hopeful and anxious at many points, from starting a relationship with the surrogate to when embryos are created and transferred, when pregnancy tests are undertaken and when it comes to the birth and getting used to being parents.  Having children brings fundamental changes to family life, which can at times put a strain on the relationship.

Sadly, sometimes relationships break down and the impact of this can be particularly difficult to manage for families where children have been born following a surrogacy arrangement.  We have seen reports in the press about couples who have separated prior to a child’s birth, which leaves the child and the surrogate mother in a difficult legal position.  The case in the US of Sherrie Shepherd and her husband, Lamar Sally, is a high profile example, which has been featured in the press.  Mr Sally and Ms Shepherd entered into a contract with a surrogate, following which she became pregnant.  Ms Shepherd and Mr Sally later separated and, reportedly, Ms Shepherd filed divorce proceedings and claimed to have been pressured into entering into the contract, which she then wanted declared void.  As Ms Shepherd was not at the birth, her name was not included on the birth certificate.  This created a number of legal issues including in relation to medical costs for the child.  Mr Sally took custody of the baby and court proceedings were started to deal with the status of the surrogacy contract and whether, at law, Ms Shepherd should be recognised as the child’s mother.

Closer to home, the English courts also have to deal with applications from parents who have separated and the child’s welfare will be the paramount consideration in respect of any decision the court makes.

There have been cases where parents have separated before the Parental Order has been made. A Parental Order terminates the surrogate mother’s legal parentage and formally recognises the intended parents as the legal parents of the child.  One of the criteria for the making of a Parental Order (which is set out at section 54 (4)(a) of the Human Fertilisation and Embryology Act 2008) is that the child must have his/her home with both of the applicants at the time the application for a Parental Order is made and when the order itself is made.  In A and B (No 2 - Parental Order) [2015] EWHC 2080 (Fam) the court was prepared to “read down” the wording of section 54 (4)(a).  In this case, the children lived with the applicant mother and had been spending time with their father (although not overnight in his home).   The court was prepared to recognise that the twins had their  home with both of their parents even though they had separated and were no longer living in the same home.

The fact that parents have separated, therefore, prior to a Parental Order being made will not, in itself, preclude the order being made.  What is interesting in the A and B  case is that although the parents had separated, they were still married and this therefore satisfied section 54 (2) of the Act (that the applicants must be husband and wife, civil partners or two persons living in an enduring family relationship).  What is not clear, however, is whether parents who have previously been in an enduring family relationship would be deemed to meet this part of the criteria if they had separated in the same way that the parents in A and B had.

What to do if you have separated

Going forward, parents who have separated will still need to agree the arrangements for their children in terms of the parent with whom they will live and the amount of time they will spend with the other parent.  If this can be agreed between them, there is no need for a further court order.  If parents are not able to agree, one of them will have to apply for a Child Arrangements Order and normal private law children proceedings will take place.  Again, the child's welfare will be the court's paramount consideration when making an order.

Further information

The surrogacy journey can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.

We have in-depth expertise in surrogacy and understand the pressures intended parents face. We also advise on relationship breakdown, divorce and children proceedings and are therefore well placed to advise you if you should be affected by any of the issues covered in this blog.

If you would like to speak to one of our specialist lawyers, please contact Connie Atkinson for family law advice, Katie Newbury for immigration law advice and our Private Client team for advice on Wills.

You may also be interested in reading our Frequently Asked Questions or previous blogs on international surrogacy, including:

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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