Edinburgh man, 72, and late wife recognised as parents of surrogate child

Edinburgh man, 72, and late wife recognised as parents of surrogate child

An Edinburgh sheriff has recognised a 72-year-old man and his late wife as the legal parents of a child born via surrogate.

The three-year-old was born on August 21, 2020, in Oklahoma. It was after a surrogacy arrangement the couple, who were in their late 70s at the time, made before the pandemic.

Due to travel restrictions, the man and his wife were unable to travel to America. The child was cared for by a professional nanny.

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They were brought back to Scotland in August 2021 and visited a care home where one of his parents was staying three times a week. The court heard he recognised her as his mother.

The judgment noted that although the parents were “outside the accepted normal range of parenthood”, the father was described as “active and energetic”. He was said to have been enrolled in a nursery while boarding school options were being considered.

Factors such as the connection between the boy and his father, the effect on his identity and the “legal rights he would have over her significant movable property” were also noted.

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In her ruling, Sheriff Wendy Sheehan said: “I do not consider that the applicants’ failure to apply to the court for a parental order within six months should operate as a bar to their application. There are compelling reasons which explain the repeated delays in this application.

“A broad and flexible approach to the interpretation of these procedures should be adopted where this is necessary to ensure the effective protection of rights. This interpretation results in being read down to read ‘At the time of the application and the making of the order (a) the home of the child must be with the applicants (or in the case of an application where an applicant has died and the application is brought on his or her behalf by the surviving applicant, the home of the child must be with the surviving applicant.'”

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She also highlighted issues that could arise in the future, such as appointing a guardian in the event of the father’s death. She said the child’s welfare would be “gravely compromised” if the court made no order.

She concluded: “The absence of a parental order would result in a failure to recognise his genetic relationship to the first applicant and would deny him the social and emotional benefits of recognising his relationship with his parents with a legality that corresponds to his everyday reality. A is well looked after and thrives under the care of the first applicant. Overall, I am satisfied that the orders sought will safeguard and promote his wellbeing and that it is better for him that I make a parental order than that none should be made.”