Surrogacy: who’s the Mummy?

The unusual case of two lesbian mothers in Florida raises interesting questions relating to the use of surrogates and what the legal situation would be in a similar situation in England and Wales.

In this particular case a lesbian couple in a committed relationship wishing to have a baby found that one of the women was infertile. One of the women donated the egg and her partner carried the child. When the couple split up they resorted to the Courts to ascertain who the “real mother” was.

In this jurisdiction, under section 33 of the Human Fertilisation and Embryology Act 2008, the mother is defined as the woman who has carried the child, not the genetic mother. If the woman carrying the child is married at the time of the artificial insemination, her husband will be legally the father, whether or not he is genetically the father of the child. If the woman carrying the child is in a Civil Partnership at the time of the artificial insemination, her civil partner will be treated as a parent of the child.

This area of law is complex and can be more so if a foreign surrogate is used. Please click on the highlighted link for more information on adoption and surrogacy law.