Giving birth to one's grandchild - a legal impossibility
9th December 2016
Giving birth to one's grandchild - a legal impossibility
Over the past few days there has been much coverage in the national media of the case of Julia Bradford and her daughter Jessica. Jessica was sadly unable to carry a child following cancer treatment. Her mother Julia carried Jessica and Jessica’s husband’s child, which was conceived through IVF treatment. Their story has been widely reported as Julia “giving birth to her grandchild”. See for example this BBC report.
Unfortunately, little if any of the coverage of this case has made any reference to the legal position. While genetically, Julia may be the child’s grandmother, legally at birth she is the mother. It is impossible under UK law for a woman to give birth to someone else’s child. The law provides that only the woman who carries a child can be the child’s mother. In surrogacy situations, such as that involving Julia and Jessica, the carrier of the child would only cease to be a parent and be replaced by the commissioning parents when a court order, known as a Parental Order, is granted. Most reports of this case have failed to mention that Jessica and her husband will need to go through the process of applying for a parental order to become the legal parents of their child.
The reporting of this case is another missed opportunity to bring to wider public attention this important legal issue. The Law Commission of England and Wales is presently considering whether to embark on a review of whether the law on surrogacy (which is UK wide) is keeping pace with social change. Perhaps the Law Commission would be well advised to begin that process by establishing just how widely understood by the general public the current legal position is.
For more information or advice in relation to surrogacy arrangements please contact a member of our team.
