# Surrogacy question on birth rights



## Empty2 (Aug 12, 2006)

Hi girls,

I wondered if there was anyone out there who can help with this question?

Our surrogate is pregnant with our triplets. The triplets may well need specialist care once they are born. We have discussed with our surrogate her midwife and her superiors about this and thought that an additional letter in her green notes signed by both the surrogate, her husband and ourselves would be sufficient for myself and my husband to be given the responsibility of the care of the babies in hospital. However the midwife and her superiors are adamant that we need to see a solicitor and get a 'legal' document to support our request. We have talked to a solicitor (who does deal with surrogacy locally) who said they are willing do draw up a letter but find it unnecessary. Till we get the parental order through the court the agreement would not be legally up held. Feel we are chasing our tails a bit, can anyone help?

Another question is:

Our surrogate is married, we have rang the registrar and have been advised that our surrogates husband would have to attend to register the birth and _*swear on oath*_ that he 'did not give his permission for his wife to enter into a surrogacy agreement with us' so that my husband (the biological father) can be put on the birth certificate, I have read elsewhere that all we need is a letter from her husband.

Obviously we want to do what is best for our surrogate and our babies so I hope someone out there can let us know of their experiences as I'm getting very anxious and so is our surrogate who would like to give birth and leave without added complications of being rung up for permissions where the babies are concerned.

Thanks

Emps
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## OD2 (Oct 1, 2007)

Hi and many congratulations on your triplets.  Wow, triple trouble!

I'm afraid that my experience reinforces your medical teams' position. We're only having one baby, but we met with the head of the midwives earlier this week and basically concluded that:
- if the baby needs to stay in, the hosptital will arrange for me to stay in with the baby, and my husband to be given normal dads visiting rights, and we will be the day-to-day care givers
- but all medical treatment needs to be authorised by my surrogate and her husband 
- when we take the baby home, our GP may need to phone our surrogate/her husband for approval (though I don't think they'll bother)

In terms of the issue about your surrogate's husband swearing/writing a letter, I'm afraid I don't have any experience of that, as it's not applicable in our case (our surrogate's husband has been right behind her in her efforts to be a surrogate and very involved with us, so it would be difficult to maintain this line). 

I'm sorry this probably doesn't help much, but you aren't being singled out for bad treatment, it's just that surrogacy law is a nonsense.

Really good luck - I hope that your babies arrive healthy and fat, so you don't need to worry about all this rubbish!

Fx


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## NatGamble (Mar 1, 2007)

Hiya

Here's the gospel on the legal side:

If your surrogate is married, then her husband is the legal father 'unless it is shown he did not consent' to the conception.  A lack of consent has to be genuine and it is a question of fact, not just what he says.  That means that the husband signing a letter saying he didn't consent when in fact he did will not be sufficient and, if he did consent, unfortunately his name will have to go on the birth certificate.

Assuming the husband is the legal father, that means that neither of you, as the IPs, will have any legal status whatsoever in respect of your children when you are born.  There is no temporary legal document you can sign to rectify this - you need a court order to give you parental rights.  This will be either a parental order (which will take at least 6 weeks and usually much longer) or, in emergency situations, a residence order which you can get more quickly (e.g. if your triplets were in special care and your surrogate lived too far away to be able to give practical consent).

In practice, it means that the formal legal position is that your surrogate and her husband will have to consent to any treatment in hospital your triplets need.  However, you may be able to persuade the hospital to take a more flexible approach in practice.  If they want a letter from your surrogate confirming that she is happy for them to consult you rather than her then I would do it, but it doesn't technically have any legal force whatsoever.

I hope that clarifies.

Natalie
[email protected]


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## Lorna (Apr 8, 2004)

I am so sorry, you find yourself in this situation.  I wish time and time again, surrogates, and intended parents were subjected to laws like those in California, where you can get an order prebirth, that makes you the parents from the moment the cord is cut.

Our surrogate lived in a state other than California, where the laws are not so well defined.  We had problems getting a prebirth order.  It was a race in the end between the surrogate giving birth, and us getting the order.  It wasn't much fun, but at least we were in a place that allowed prebirth orders, other places insisted you got one after birth!

You just don't need all that hassle, when you are coping with a new born.  Even with a prebirth order, we had to go back to court, after the birth.  There was a massive amount of paperwork we had to do, after the birth of our twins.  It took time away from our babies.  I felt our newborns needed our attention.  They didn't need us running round in endless circles, trying to get the correct piece of paper.

Sorry I keep looking at infertility laws in the UK, and thinking anyone who says they are in the interest of the child, has a very strange way of looking at the world.

I do hope, everything works out well for you,

Lorna


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## mich10 (Mar 16, 2008)

Hi Nat, 
at the time of registration though how can one prove that the suro's husband did not consent to the arrangement, what evidence would one need? Is a letter from him and his word enough to convince the registra?
michXXX.


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## NatGamble (Mar 1, 2007)

Mich - As a matter of practicality I'm not sure how many questions registrars ask in these circumstances.  I would imagine that there is guidance ensuring that they take steps to ascertain the facts very carefully in surrogacy cases, and I doubt that a simple letter from the surrogate's husband to say he doesn't consent would be sufficient to satisfy them.

More importantly, anyone registering the birth has an obligation to tell the truth and it is an offence to misrepresent the position.  If you know that the surrogate's husband consented (which legally applies even if he just acquiesced) and you present a letter saying he didn't which you know to be untrue, that puts you in a very difficult position, and I would never recommend it.

Lorna - I entirely agree that the state of UK law is ridiculous at the moment.  This is just one of the issues where it doesn't seem to make any sense.  Why should the surrogate's husband have more of a say in the child's future than the intended/ biological father?

Natalie


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## Empty2 (Aug 12, 2006)

Hi ladies,

Thank you for all your responses to my questions, hopefully some time in the future changes will happen, if it can in Scotland why not here. There the surrogates husband just has to put in writing that *he is not the father of the new born * and then he is not then put on the certificate. Simple enough. I have already got in touch with you privately Nat before my post here, and thank you for that. Just to clarify our surrogates husband is 100% happy with the surrogacy it was just I had read elsewhere to go down the route in my last post.

We have all now agreed a letter to be put in our surrogates green notes and the head of midwifery at the hospital is putting our case on file for future reference as I am sure a lot more ladies will probably be choosing this route. They are very happy with the letter which was signed by our surrogate and her midwife, the consultant and paediatrician also have signed copies too, to transfer the gardian from our surrogate to my husband and I whilst the triplets are in hospital.

We are also in the middle of writing out wills in case anything happens to anyone of us before the parental order.

With regard to the birth certificate our surrogate and my husband will take a letter from our surrogates husband to the registrar in which he states that he is not the father of the baby (or in our case babies!!!) and so cannot go on the certificate, as you say Nat they want the truth and you cannot lie to them, hopefully my husband will go on it then if not we will just have to wait for the parental order which we can apply for after 6 weeks.

Hopefully it will all become clearer once the babies are here.

We had a 26 week scan yesterday and they are all doing very well and are within the weight range that they should be!  Our surrogate is 'blooming' and very tired now but is coping wonderfully! 

Wishing you all well,

emps
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## NatGamble (Mar 1, 2007)

Empty2 said:


> if not we will just have to wait for the parental order which we can apply for after 6 weeks.


Just to add that you can apply for the parental order as soon as you have the birth certificate - it just won't be granted until the surrogate has given her consent, which can only be validly given after 6 weeks. No harm at all in getting the ball rolling as soon as possible though.

Natalie


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## Empty2 (Aug 12, 2006)

Hi Nat,

Thanks we will do that then, and thank you for all you advice.

emps
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## NatGamble (Mar 1, 2007)

P.S.  I know I give lots of free advice here anyway and probably do myself out of a job  , but if any of you want proper legal help with the process of applying for a parental order (either representation if your circumstances aren't straightforward, or just some specific guidance about what you need to do), I'm always delighted to help.  It can be hard to find a solicitor with expertise in this rather unusual area of law.

(Sales pitch done!)

Natalie
[email protected]


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