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Pregnant woman with vines emerging from her womb

Fertile grounds

Colin Rogerson, Rose-Marie Drury and Katharine Watson explore the recent case of Re AB involving surrogacy and legal parentage across borders

Re AB (A Child) serves as an important reminder of some of the complexities that arise in ensuring that legal child-parent relationships are appropriately recognised in all relevant jurisdictions.[1], [2]  It also underlines the importance of private client practitioners checking that legal parentage is established. In this case, three jurisdictions were involved: California, where the child was born and lived; Guernsey, where there were several family trusts; and England and Wales, where there was a further family trust. 

 

What is a child?

Legal parentage is a fundamental relationship that impacts upon a wide range of issues. It is particularly important for private client practitioners, given the potential impact this may have on inheritance and trusts. The definition of ‘child’ is not necessarily something that a private client practitioner will focus on and, consequently, the right questions to determine how a child was born are not always asked. Perhaps practitioners find it embarrassing or even confrontational to question a child’s parentage. However, the statutory definition of ‘child’ and the definition of ‘child’ incorporated into the standard set of wills and trusts precedents do not necessarily include the child/ren (and wider descendants) of the client that the advisor is taking instructions from, so it becomes more important to ask such questions. In Re AB, this was particularly relevant because it concerned an English and Welsh family trust that predated the reform of English and Welsh adoption law in 1976 and so the child in question was not recognised within the class of beneficiaries of the trust.

The law relating to legal parentage where children are conceived through assisted reproductive technology (ART) varies considerably between jurisdictions. At present, there is no international instrument that enables the automatic recognition of parentage through ART conferred in another jurisdiction. For families with connections to multiple jurisdictions, it is important to understand the position as to their legal parentage in each jurisdiction to which they have a connection. This can be particularly difficult because many jurisdictions with restrictive surrogacy laws have limited or no provision to establish or recognise legal parentage of surrogate-born children. In others, intended parents may not be able to satisfy jurisdictional requirements to bring parentage actions (for example, if the law requires applicants to be domiciled or habitually resident). It is important for lawyers advising families undertaking surrogacy or other forms of ART to have international recognition of legal parentage at the forefront of their minds and be ready to work collaboratively with overseas lawyers to find holistic legal solutions that work for the family’s individual needs. 

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