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The Real Three-Parent Babies

04/02/2015 19:09 GMT | Updated 06/04/2015 10:59 BST

The new law passed by MPs earlier this week is being hailed by many as the introduction of three-parent babies, but biologically and legally that is not quite what has happened.

The procedure, approved by MPs following a free-vote, involves replacing less than 0.1% of the DNA of a child to prevent mitochondrial diseases. Moreover, scientists are certain that this procedure will not affect the child's personal characteristics or personality traits. As it stands, the whole thing is more akin to an organ transplant than anything else and so claims that the donor woman is effectively a 'second mother' are far-fetched and misleading.

Legally, the donor woman is unlikely to have any rights over the child born as the Human Fertilisation and Embryology Act 2008 defines a 'mother' as the woman who carried the child, regardless of their biological connection. Indeed even surrogates who have had the fertilised embryo of another woman implanted into their womb are still deemed the legal 'mother' of that child, even though biologically, they are totally unrelated to them.

And here lies the real problem. Whilst this new law should rightly be celebrated for tackling the devastating impact of mitochondrial disease and enabling women who would otherwise risk bringing seriously ill children into the world to have healthy infants, Britain is still failing the real three-parent babies: children born via surrogates.

The Surrogacy Arrangements Act was passed thirty years ago with a few amendments added since. One of the key additions is that made by the Human Fertilisation and Embryology Act 1990 which rendered surrogacy arrangements completely and utterly unenforceable. The Surrogacy Arrangements Act also prohibits lawyers from advising on surrogacy arrangements for a fee, which means that the legal profession, bar a select few, remain woefully uninformed when it comes to the complex area of surrogacy law.

Unenforceable agreements mean that couples wanting to bring a child into the world are forced to rely on the goodwill of their friends and relatives to act as surrogates and ensure that they have any claim over the child they so desperately want. Same-sex male couples are the most obvious beneficiaries of surrogacy, but not to be forgotten are the vast number of women in the UK who are unable to have children of their own.

Cases heard in the family courts over the past few years demonstrate these informal situations end up being far from straight-forward. Once the baby is born, the commissioning parents must apply for a court order to become the legal parents of the child. There is a narrow window for such an application to be made: no less than six weeks and no more than six months after the birth, although the courts have recently indicated that there might be a degree of flexibility for applications made outside the time limit. Only when the procedure has taken place at a licensed facility can the biological father or non-biological second parent be designated as the legal parent and even this is only possible if the surrogate is unmarried. Without a parental order, the commissioning parents have no legal rights over the child.

Unfortunately, there are many cases where, upon giving birth to the child, the surrogate mother does not want to give the baby up and will not consent to a parental order being granted. This unsurprisingly sparks bitter litigation over the new-born who will see their first few months, even years, being the subject of reports and hearings concerning who their parents should be and where / how they will be brought up - questions that go to the very heart of that child's identity.

In these situations, the biological, commissioning father has the best claim to parenthood and is likely to be granted parental responsibility by the courts, albeit shared with the surrogate mother. Non-biological fathers and mothers however, are left stranded with few options and no independent claim to the child. Not only is this devastating for the adults involved, but the child that has been born into this mess will undoubtedly be affected by the litigation itself and the uncertainty over their family make-up.

The chaos created by unenforceable surrogacy agreements and the general prohibition on advising on them in the first instance creates a system that is not fit for purpose. Parties should be encouraged to sit down in advance of any surrogacy arrangement and discuss the realities of what they are about to embark upon with the benefit of robust legal advice.

Following the legalisation of same-sex marriage and given the huge increase in the number of children now born via surrogate, it is time for Parliament to introduce a twenty-first century solution that respects both the autonomy and rights of all the adults involved and prioritises the welfare of the child right from day they are born.