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Who's The Legal Mother in Coronation Street Surrogacy Story?

Many people will have been gripped by recent developments in one of Britain's best loved soaps.

The residents of Coronation Street in Weatherfield have been learning of the domestic surrogacy arrangement between Gary, Izzy, and Tina who is acting as their surrogate.

Izzy's disability affects her ability to carry a child. Having already suffered a miscarriage due to the strain the pregnancy put her body under and after seeking medical advice, Izzy decided to look into surrogacy arrangements.

Who's the Legal Mother?

Tina, Coronation Street's popular barmaid, offered to assist Gary and Izzy by becoming their surrogate. At the time that this offer was made Tina and her then boyfriend Tommy were in serious financial difficulties and Izzy's father offered to pay Tina £15,000 for acting as a surrogate.

Gary and Izzy are both the biological parents of the child and insemination took place at a licenced IVF clinic. Matters proceeded relatively smoothly for Tina, Izzy and Gary in the early part of the pregnancy. However Tina went into premature labour at 7 months and gave birth to a little boy who is in neonatal care due to breathing and other difficulties associated with being born prematurely. Tina then indicated that she wanted to keep the little boy and not hand him over to Izzy and Gary as agreed. But can she do this?

Izzy, Tina, Gary and baby
Under the law of England and Wales, the woman who gives birth to the child is the legal mother, regardless of whether she has a biological link to the child or not. Therefore currently Tina is the legal mother of the child. Tina has now registered the birth, showing herself as the legal mother and Gary as the father. Izzy has no legal rights over the child. (If a surrogate mother is married, legally her husband would be the father!)

Parental Order

Usually the intended parents would be encouraged to apply for a Parental Order to extinguish Tina's rights in relation to the child and have parental status conferred upon them. At the stage when Tina was intending to keep the baby, Izzy and Gary weren't a couple and as such would not have satisfied all of the necessary criteria to apply for a Parental Order. In addition to this, at the time they no longer had the surrogate's consent to the making of a Parental Order and this would have been fatal to their application.

An alternative route which Izzy and Gary could pursue, would be to apply for an adoption order in relation to the child. This would also extinguish Tina's rights in relation to the child and confer parental status upon them. However they can only make an application for an adoption order once the child has lived with them for a certain period of time (6 months if Gary is the father but otherwise it is 3 years). If Tina hadn't handed the baby over then they wouldn't have been able to fulfil this condition and then the Courts would have needed to become involved to try and resolve the situation. Although the Courts are sympathetic to intended parents of surrogacy arrangements, surrogacy agreements are not legally binding in the UK and are therefore unenforceable even if the surrogacy expenses have already been paid. The court has a wide discretion to act in the best interests of the child and there is case law which supports both Tina's and Izzy and Gary's positions.
Coronation St Izzy in wheelchair

What will happen in this case long term is something which is too difficult to predict, however one thing easily definable is that Tina is the legal mother of this child as things currently stand. She therefore has parental responsibility and can make all necessary decisions regarding Baby Jake's (or is it Joe's) upbringing and welfare.

Paying a Surrogate Mother

Another potential pitfall that the parties may face is that Tina received £15,000 for the surrogacy arrangement. Brokering a commercial surrogacy in the UK is illegal and a surrogate can only be compensated for her reasonable surrogacy expenses. This test is subjective and the term “reasonable” is difficult to define. The fact that Tina received £15,000 from Izzy's father, together with the use of a flat during her pregnancy and a job working at Izzy's father's company will all need to be taken into account. There is a risk that criminal charges could be faced by Tina, Izzy, Gary and Izzy's father.

Despite the above, it must be noted that there are many successful domestic surrogacy cases which take place in the UK each year. The current storyline in Coronation Street highlights the potential for these agreements to breakdown and addresses potential legal pitfalls. Parties looking into the use of a surrogate, whether in the UK or abroad, should always seek specialist legal advice before entering into any agreements.

by
from The Fertility Team at Lester Aldridge Solicitors
Find out more about surrogacy law here.

July 2013
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