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Baby conceived through surrogacy in legal custody limbo

It may be possible for a single man or woman in Louisiana to become a parent if they want to by virtue of artificial reproductive technologies. That does not mean that the code of family law is always prepared to accept the reality. It is in such situations where social change outstrips the ability of the law to keep pace.

Very often, the courts receive challenges that the laws never anticipated. In the face of legal language that is vague, the door opens to courts making interpretations that change laws. Sometimes, though, where legislative intent is clear, judges may balk at taking action.

This appears to be what has happened in connection with a family law case out of Britain. The result is that a 1-year-old boy is in something of legal custodial limbo. The boy’s father is a single British man. His mother is a U.S. woman who contracted commercially to serve as surrogate and gave birth to the child.

There is no dispute that the man is the boy’s genetic father. He is also recognized in the U.S. as the sole parent, with the surrogate mother’s agreement. But a British judge’s ruling this week says that while British law allows single people to adopt, it specifically restricts surrogacy as being the purview of couples. The judge observed that when the issue was debated seven years ago, Parliament refused to amend the law.

The father’s barrister argued that the two-person requirement violates modern principles that bar discriminating against non-traditional family structures. She also said that the boy’s being a ward of the court does not fulfill the tenet of serving the child’s best interests.

That didn’t sway the judge, however. He said Parliament will have to change the law. Alternatively, he says the father might be able to launch a new challenge claiming that the current law violates his human rights.

What do you think should happen?

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