September 13, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This case may just qualify for the status of Weirdest and Most Anti-Father to come along in a good while (Daily Mail, 9/7/15). In fact it’s so strange and self-contradictory that it’s a bit difficult to describe. But here goes.
An unmarried British man wanted a child, so he advertised for a surrogate mother. A suitable candidate in the United States responded, so the man contacted an appropriate agency to guide him and the woman through the process that would make him legally a father. He paid the agency about £8,000 and the woman about £22,000. A third-party egg donor provided the egg, the man the sperm and the zygote was implanted in the surrogate’s uterine wall. In due course, a baby boy was born.
The man and the woman went to court in Minnesota where he was judicially established as the boy’s father and she was relieved of “any legal rights or responsibilities” regarding the child. Fine so far.
But then the man, babe in arms, returned to the U.K. There he applied to a court to be named the boy’s sole parent, much as had been done in Minnesota. The result? He’s not the child’s father according to British law.
That’s because “section 54 of the Human Fertilisation and Embryology Act 2008 clearly states that applications for a parental order can only be made by “two people”. Such couples must be married, in a civil partnership or “living as partners in an enduring family relationship” (Marilyn Stowe, 9/7/15).
And that’s what the judge, Sir James Munby, ruled. By law, the man cannot be his son’s father. After all, Parliament passed the law and judges are required to follow it. Again according to the Daily Mail:
Parliament, 'for whatever reasons', had thought it right that parental orders in such cases could only be granted to two people.
That was a 'fundamental feature' of the legislation and the courts could not go behind the will of Parliament, Sir James ruled.
That would be an odd bit of public policy if it were true, but it’s not, or, well, actually it is, but not really. Parliament apparently wanted children born to a surrogate to have two parents, not one. We can agree or disagree with that policy, but at least it’s clear, right?
No, actually it’s not. That’s because, under British law, because the child was born to a surrogate and the father isn’t married or in a lasting relationship, the boy has but one parent — the surrogate mother. That’s right, the law that supposedly requires two parents results in the boy having only one, the mother. That of course is the same mother who is only a surrogate, wants nothing to do with the child and who hasn’t either “legal rights or responsibilities” in the U.S.
Whatever the position in America, the judge said English law emphatically recognises the surrogate mother as the child's only legal parent.
Therefore, in its wisdom, British law has left this little boy with no parent at all. Dad wants to be his father, but can’t be; the surrogate, who has no genetic relationship to the child, who wants no part of his life and who has no parental rights in the United States is, according to British law, his only parent.
Make sense? It gets stranger still.
Sir James said the boy had been made a ward of court after the man brought him back to Britain - which means a judge has authority to make decisions about his future.
Yes, the man who so desired a child of his own that he jumped through an astonishing number of financial, legal and practical hoops to become a father now has to ask a judge for everything the boy needs. That judge of course is someone who doesn’t know the child and has no relationship with him. Does the boy need emergency medical care in the middle of the night? Call the judge. Is this medication appropriate? Call the judge. Does the man want to marry or bring a partner into his life? Better check with the judge to make sure the person passes muster. What about the child’s education? Call the judge. What if the man wants to take the child to live in Minnesota where his rights are established? He’ll need the approval of the judge.
And on and on and on. The possibilities are almost literally endless. The situation is insane.
Now, it may be that the man can pursue other legal remedies. He may be able to adopt the child, for example. Or he may complain that the Human Fertilisation and Embryology Act of 2008 violates his rights under the European Charter of Rights and Liberties.
But whatever happens, the “two-person” rule which here is a one-person rule which in this case results in a no one being the child’s parent stands. The child has a father, except he doesn’t. The man who’s genetically related to the child, has gone through all of this and who cares for the boy every minute of every day isn’t his father, has no parental rights and legally can walk away from him at any time. The closest thing he has to a father is a judge who’s likely never set eyes on him and won’t even think of him as often as once a week. The closest thing he has to a mother is a woman in the United States with no parental rights and no interest in him.
Mr. Bumble in Oliver Twist hugely understated the point when he said “The law, sir? The law is a ass, a eejit.”
And, lest we forget, family courts always act in the best interests of the child.
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