As The Beatles song Back in the USSR trumpets with enthusiasm: “Georgia’s always on my my my my mind.” With the disintegration of the Soviet Union, the Republic of Georgia is now a separate country. They have their own laws. These laws are not the same as the laws of England. A British couple who went to Georgia for assisted reproduction learned this the hard way.
Sperm from the intended father and donor ova were used to create the embryos. The couple enlisted the assistance of a Georgian surrogate to carry the baby. The child was born in Georgia without incident, and the government of Georgia issued a birth certificate naming the intended father and his wife, the intended mother, as the child’s parents, even though it wasn’t the mother’s egg, and she hadn’t carried the child.
This birth certificate wasn’t worth anything in England, as the couple discovered after they separated several years later and found themselves in a court case. One of the fundamental issues was: who are this child’s legal parents?
“There can be no doubt the parties are the social and psychological parents of the child,” declared the judge. “That is why I will refer to them as the mother and the father. However, this does not make them at law the parents of the child.” [emphasis added]
The law of England is a bit old-fashioned: if you have a child by any method other than the old-fashioned one – i.e., dad’s sperm, mom’s egg, and mom carries the baby – then you’ve got six months from the birth to go to an English court and get the appropriate “Parental Orders” so the intended parents become parents “at law.”
Under English law, the Georgian surrogate was the legal mother. To make matters worse, it emerged that the surrogate might be married, and if so, then under English law her husband back in Georgia would be the legal father – even though it wasn’t his sperm, it wasn’t her egg, and neither she nor her husband could, in any way, shape, or form, be considered an intended, social parent.
The resulting mess was lamented by the judge, who called for “a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.” In the absence of any uniform international regulations, the judge had to fashion a solution as best he could to solve the problem of a child who had no legal parents.
Obviously, the judge didn’t think it would be in the best interests of the child – always the paramount consideration – to declare that the Georgian surrogate and her hapless husband were the legal parents. Even if the judge wanted to do this, it would be highly problematic because the whereabouts of these Georgians was unknown. An international detective agency was hired, to no avail. The fertility clinic in Georgia was not co-operative. These people had disappeared from the radar.
With respect to the surrogate mother’s marital status, the judge refused to rule either way, because the evidence was completely contradictory. The British Embassy said the surrogate “is divorced and was divorced before she entered into the surrogacy arrangement.” However, the fertility clinic sent an email stating that the surrogate “is and was legally married.” The clinic sent another email saying that “the surrogate signed a contract with us claiming she was single.” Yet another email from the clinic gave the assurance that they “do not match married surrogates to UK couples.”
In the face of this uncertainty, the judge ruled that “the evidence does not establish that the surrogate mother was married at the relevant time. The evidence is not sufficient to enable me to come to that conclusion on the balance of probabilities.” Nor, so it seems, did the evidence establish the surrogate mother as single either!
In the end the judge ordered, on consent of the British father and mother, that the child would share residency with both of them. As for who the child’s legal parents were, expediency seemed to dictate the solution: the child was declared to be a ward of the court.
The lesson from this case is clear. Those who travel to another country for assisted reproduction should FIRST learn the law of their home country and plan accordingly to deal with all the legalities. Because as this case well illustrates, legal parentage paperwork from a foreign country may indeed not be worth the paper it’s written on when you get back home.
Bill Rogers is a Toronto lawyer and blogger covering family law and fertility law issues, and a columnist for the Medical Post covering the law of malpractice. He can be contacted at www.rogersfamilylaw.com