Two less-publicized court battles unfolded in late 2014 in the UK, shedding a light on the opportunities and obstacles for same sex couples seeking gay surrogacy procedures. The two cases were summarized in the Daily Telegraph.
In November Daryl Lee and Luke Harris told a newspaper that they were expecting three children by three different surrogate mothers in the space of just a few months. After meeting in 1999 and years of planning to have children, Lee, 41, said: “While it is unorthodox to have three surrogates at the same time, we couldn’t turn down what could be our only chance to have the big family we’d always dreamed of.”
In this example of family bliss, the couples’ parents are set to move in to help with childcare, both men are planning to work part time, and all three surrogate mothers say they are happy with the arrangement.
In contrast, a court report also from November showed a gay surrogacy couple in a bitter custody battle after entering into a co-parenting arrangement with lesbian friends. The two couples had one child around 13 years ago and another a few years later. But the odd family dynamics eventually resulted in a “bruising and distressing” rift which had “irredeemably harmed” the two children, according to the judge presiding over the case.
The judge ultimately ruled the children should stay with the female couple.
The two cases illustrate a basic tenant that professionals managing cases of gay surrogacy share with clients: that becoming pregnant and delivering a baby via surrogacy is just the first step, and often not the most complicated part of the surrogacy process. Even more critical is for couples to fully understand the fundamental law of parental rights, child welfare rights, and immigration.
For example, surrogacy contracts in the UK you can’t legally force the surrogate mother to give up the baby,” says Sarah Jones, chair of the support organization Surrogacy UK. As a result, the surrogate mother has legal rights in the UK over the child from conception until six weeks after birth. After six weeks the couple can apply for a “parental order”, under which they both become the baby’s legal guardians.
Of course overseas surrogacy is less problematic in terms of the involvement of the surrogate or egg donor is the lives of the new parents. In most cases the egg donor is completely anonymous. The surrogate is practically anonymous, with most couples never meeting her or having minimal contact only at the request of the parents. Surrogacy contracts can clearly state the intention and legal obligations of the surrogate and the parents, but that is not always a solution.
In countries where surrogacy laws are not formalized (like Thailand or Nepal) there is the risk that the surrogate mother may retain some of her rights, whether she requests them or not. Under the laws of various countries, the surrogate may be forced to retain parental rights. In other countries, the surrogate can only give up parental rights though an adoption process in the overseas courts.
In all surrogacy cases, clinics and consultants alike should always recommend (and if possible refer) would-be parents to local lawyers who specialize in cases of surrogacy, adoption and immigration before starting any medical procedure.