The newspaper headlines have been exploding with news about the gay dad whose mum was his surrogate. But have they missed the point? This case resulted in a landmark legal decision. Whilst the media have focused on a mother carrying her son’s child, this is not what makes this case ground breaking.
Kyle Kasson, aged 27, was a single gay man who decided that he wanted to become a father. There is nothing shocking about this. Originally he had another relative who had agreed to act as his surrogate, but when she had to pull out for medical reasons his mother stepped in to help.
It is not uncommon for family members to act as surrogate and in fact UK law could even be said to encourage family surrogacy by discouraging the advertising of third party surrogates.
The family entered into the arrangement after careful consideration and the fertility treatment was undertaken at a UK licensed clinic. His son Miles was conceived using his own sperm and a donor egg.
The importance of this case is that under UK law the legal parents of a child born through surrogacy are the surrogate and her husband. In this case, Kyle’s mother and father. Ordinarily the intended parents would become the legal parents by applying for a parental order in the first 6 months post birth. Unfortunately in the UK only couples are allowed to apply for parental orders and Kyle was single.
So what makes this case unique is that Kyle had to apply for an adoption order, which was the only other means of ensuring that he is recognised as the legal father. Whilst the court should be applauded for its child focused resolution in this case, as the Judge made clear, adoption law is complicated and not made for surrogacy. Certainly adoption may not be the best solution in other cases where the surrogate is not a close family member or the child is born abroad.
If you are a single father considering surrogacy then please contact us for detailed advice.