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ASSESSMENT QUESTION (100 marks) Keira and Jude have been married for five years. They both wanted children, but after suffering several miscarriages Keira was diagnosed

ASSESSMENT QUESTION (100 marks)

Keira and Jude have been married for five years. They both wanted children, but after suffering several miscarriages Keira was diagnosed with a medical condition which prevents her from continuing a pregnancy to full term. Eighteen months ago, Jude read an article online about Helena who has three children of her own and had acted as a surrogate for childless couples on two occasions. Both Keira and Jude saw this as a chance for them to become parents.

Keira and Jude made contact with Helena. They then met face to face and got on very well together. Subsequently, Keira and Jude entered into a surrogacy arrangement with Helena.Pursuant to the surrogacy arrangement, and with the consent of her husband, Sacha, Helena undertook assisted reproduction treatment at a licensed clinic in England using a donor egg and Jude's sperm.

As soon as Helena's pregnancy was confirmed, Keira and Jude paid her 5,000 for expenses in accordance with the surrogacy arrangement. A month ago, Helena asked for more money. When Keira and Jude refused to pay there was a terrible argument. Keira and Jude did not want to cause Helena further upset so close to the birth, so they did not continue with the argument. They just hoped that Helena would eventually calm down and that the surrogacy arrangement would proceed.

Last week Jude saw a post on social media announcing that Helena had given birth to Ewan. Jude immediately phoned Helena. Helena said that she had no intention of going through with the surrogacy arrangement. Jude pleaded with Helena to hand Ewan over and even offered to guarantee that the baby would always maintain a relationship with her and Sacha. Helena just laughed. She said that she and Sacha had already registered Ewan's birth, that he was their child and there was no way that she would ever allow Keira and Jude to have anything to do with Ewan. Helena then slammed the phone down.

Advise Keira and Jude as to:

  • who is/are Ewan's legal parent(s) and who has parental responsibility for him;
  • what court order(s) they could seek to ensure that Ewan has his home with them (you will need to address whether they can apply for such orders as of right or whether they will first need to obtain leave of the court to do so); and
  • whether they are likely to be successful in obtaining the relevant order(s).

Do you think that Keira and Jude could be accurately described as victims of the weaknesses in the Surrogacy Act 1985? Briefly explain your view..

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