Mr And Mrs K -V- Mr And Mrs Z: The Impact Of Surrogacy Arrangements Can Reach Beyond Family Law

At JCP Solicitors, we are proud to provide our clients with a comprehensive legal service, drawing on the wide range of legal expertise amongst our teams. The recent case of Mr and Mrs K v Mr and Mrs Z is a classic example of where one aspect of law can have a profound impact on another.

In this case the court granted a parental order to a couple in their seventies who had entered a surrogacy arrangement in the United States, where their child was conceived using a donor egg and the father’s sperm. Although the parents satisfied all the relevant welfare criteria within the Human Fertilisation and Embryology Act 2008 and the Adoption and Children Act 2002, the court was concerned that given the couple’s ages considerations should be given regarding the child’s long-term care.

The court directed that the parents should prepare Wills and Lasting Powers of Attorney as measures to protect the child’s welfare in the event that either or both became incapacitated or died before the child reached the age of 18 years. With the court having been satisfied that the couple had put adequate provision in place, the parental order was granted.

This case highlights the significant importance of long-term care planning for all parents and carers with young children. A Will can be particularly helpful in the appointment of guardians, i.e. those who will take parental responsibility and care for your child if you pass away before your child reaches their 18th birthday. On the death of the parent/s the guardian will obtain parental responsibility for the child so long as the child has no other surviving parent who holds parental responsibility for them. If the person caring for the child had a ‘Live With’ Child Arrangements Order in force in favour of the deceased person, the Guardianship will take effect immediately on their death even if the surviving parent has parental responsibility and the guardian will share parental responsibility with the surviving parent. The appointment will not take effect immediately if the surviving parent was also named in the CAO as a person with whom the child is to live – where there had been a joint ‘Lives With’ order.

Couples and individuals considering entering surrogacy arrangements should also consider:

• whether financial provisions should be in place to fund the child’s future care and upbringing, if one or both parents become incapacitated or pass away; and
• how their estates should be dealt with if they die before their child reaches the age of maturity.

At JCP Solicitors we are highly experienced in preparing Wills, Lasting Powers of Attorneys and Trusts as well as being able to advise and represent those seeking parental orders. We will work collaboratively to provide you with the appropriate advice tailored to your specific circumstances.