Surrogacy claim for legitimatisation.

[https:/www.LeighRayment.com.au]

Just reading an article for the second son of the present Marquess of Bath, Lord Henry Thynn born in 2016.

https://www.tatler.com/article/marquess-of-bath-son-inhertiance-legal-proceedings

The Marquess of Bath, Ceawlin Thynn, has backed legal action to ensure that the son he shares with his wife, Emma Thynn, can inherit part of his £157 million family fortune.

The pair’s second son, Lord Henry Richard Isaac Thynn, was born via surrogacy in 2016. During her first pregnancy, the Marchioness of Bath had suffered from hypophysitis, a rare inflammatory disease of the pituitary gland, and was warned by doctors that a second pregnancy could prove fatal.

Henry is thought to be the first British aristocrat born through surrogacy, a matter that has raised questions regarding the legitimacy of his claim to the Bath family fortune. The trustees, therefore, are seeking approval from the court to ensure Henry and any of Henry’s future children can inherit a share of the family’s three trusts. Per The Times, the Marquess is hoping to gain the power to add Henry to the list of trustees, but is not looking to exercise that power as of yet.

[marquess]

The more interesting thing for us Peerage followers, is Lord Henry in remainder to the marquisate or will he be? The current Duke of Manchester's are entitled to the family trust even though they are not in remainder to the dukedom. 

[bx...@yahoo.com]

Who would ultimately decide  if Lord Henry is in remainder to the marquessate, and what criteria would they use to make that determination?

Thanks.

Brooke

[https:/www.LeighRayment.com.au]

Totally right, Brooke.  It will change the course of children born to the man and wife bodies.  

Marquess in regards to the Dukedom of Manchester, I am certain the son of the present Duke will make a claim. It has been reported that at the time of his mother's wedding to the Duke, (may have been heir at the time), the spouse was clear of any previous marriages. Later to be known it wasn't.. So in due course, an interesting case to put forward and see where that leads.

[malcolm davies]

Brooke and Leigh,

                               The problem is that a birth by surrogacy is a birth where the mother is the carrier of the child and the father is the person whose child it is-see ss27 &28 of the Human Fertilisation & Embryology Act  1990.s29(4) of the Act says:-

29(4) In relation to England and Wales and Northern Ireland, nothing in the provisions of section 27(1) or 28(2) to (4), read with this section, affects–

(a) the succession to any dignity or title of honour or renders any person capable of succeeding to or transmitting a right to succeed to any such dignity or title, or

(b) the devolution of any property limited (expressly or not) to devolve (as nearly as the law permits) along with any dignity or title of honour.

 In short  Lord Henry Thynn is illegitimate and has no property rights under the family trusts if they follow the devolution of the dignities.However the terms of the trust may be amended and no doubt this will be part of the relief sought.

 Turning to the 13th Duke of Manchester's son Alexander.He is illegitimate and cannot succeed to the title.This is because there is a finding to that effect in the proceedings brought by the trustees to enable him to receive income from the family trusts:  Green & Anor v Honourable Alexander Montagu & Ors 2011 EWHC 1856 (Ch) (Floyd J) .He is legitimate for other purposes, because the Legitimacy Act 1976(UK), the Marriage Act 1901(Cwth) and the Civil Code(CA) all provide for legitimacy where one party to the marriage believed it was valid (there was an issue as to where the Duke was domiciled at the time requiring consideration of the laws of each country of the Duke's domicile-but they were relatively the same).That applied to Wendy Buford Alexander's mother.

 Alexander is estopped on his father's death of claiming he was legitimate and thus succeeding to the peerage because of this finding.

[bx...@yahoo.com]

Hi malcolm.

Thanks for your explanation.  I think most of us here are concerned only with succession to a peerage, and not necessarily with trusts that may be involved.  It seems clear then, that Lord Henry and any other male born from surrogacy wouldn't have succession rights.

Question: do you think this may change at some point, as it seems some things have changed.    I'm thinking of Lady SImon of Wythenshawe's situation.  Although it's totally different, in that she was born a male and became transgender, her succession rights were upheld, whereas in the past, they likely wouldn't have been.

Thanks.

Brooke

[malcolm davies]

Brooke,

             You can change peerage succession by legislation-but you need to be careful.

  And there is this question-getting the numbers for change when the group affected is seen to be privileged. After all legislation to allow women to inherit peerages has gone nowhere so far.

  As to Lady Simon of Wythenshawe you need to remember she was born male and that fact enabled her to succeed according to the letters patent creating the peerage.The Gender Recognition Act 2004 only affects the way she can style herself namely, as Lady Simon, rather than Lord Simon.If the gender reversal was the other way round(ie born a woman transgendered to a man),she(he) would not have been able to succeed to the peerage

[marquess]

Isnt the Thynn case one were both parents are the genetic parents and the surrogate mother has no genetic imput? Thus is this covered by the 1990 act that Malcolm has quoted? It seems to me from a practical and ethical point of view, both parents are married, the child is theirs gentically, all tha has happened is another womnan is the carrier of the child; is the latter point sufficient to render the child illegitimate?

[bx...@yahoo.com]

The Thynn/Bath situation will probably be the first of several of its kind.  It should be interesting to see what the ultimate outcome will be.  

A decision whereby Lord Henry would be able to succeed (and marquess does make a compelling case) could postpone the extinction of some hereditary titles in the future.

Brooke

[colinp]

I set out part of what I posted to the recent Montagu of Beaulieu heir thread:

* I have just been reviewing the very interesting article by Sir Crispin Agnew of Lochnaw Bt KC (who represented the successful party in the Pringle case) and Dr Gillian Black which appeared in the last 2019 DPB print edition called "The Pringle of Stichill Dispute: Illegitimacy, Discrimination, Genetics and the case for Reform".  I think some of the research behind the article has also appeared in the Cambridge Law Review but you probably need a subscription to read it. The learned authors in discussing "Assisted Reproduction:Surrogacy" state that the surrogate (or gestational, birth) mother is always, under the Human Fertilisation and Embryology Act 2008 the first legal mother and she only loses that status when the "commissioning couple" (ie the couple receiving the treatment, in your scenario [who are also] the genetic parents) obtain from the court (which checks that the required procedures set out in the 2008 Act have been complied with) a parental order which then transfers the legal parental status to them.  Once granted the parental order ensures that the child will be the legal child of the commissioning couple for all purposes but there is an exclusion denying children the right to succeed to peerages and baronetcies where their legal relationship with their parents arises through the statutory provisions of the 2008 Act regulating surrogacy."

Montagu of Beaulieu Heir?

[gorgo...@gmail.com]

It's wise to exclude children born via surrogacy from lines of succession. The key moment here is "accountability". Currently, the heir to a title must prove his rights to this title. The procedure is quite simple, but difficulties still arise. If children born via surrogacy are also heirs, potential titleholder has to prove absence of such children. Instead of one wife, a dozen women in different parts of the world could give birth to potential heirs. How can this be verified? Obtain certificates from every clinic in the world?

[marquess]

In the case of Lord Henry, your argument doesn't hold up well. The parents of the child were married when he was artificially conceived. The parents are both the genetic parents of the child. If the latter were not the case there there would be irrefutable grounds for exclusion from succession. The only part of your argument that might be considered, is the possibility of genetic parents producing an innumerable amount of offspring that would ordinarily have been impossible. 

If this case eventually goes to court, and I think it will, the claiment has a strong chance of winning. 

[gorgo...@gmail.com]

I am sure Lord Henry will have all rights except right to succeed to the titles.

[cb]

About 50 years ago I was approached to head up an ethics committee in an IVF programme in Melbourne, Australia.  After some consideration I found I had to decline as I could not reconcile my faith with the progamme.  At that time, the concept of ethics was not confined to making the medical profession feel good about intervening in the natural process of human procreation but was being viewed on the broader stage.

The most immediate problem was who were the parents of the baby if a donor egg or sperm was used and, to me, the same question arises with surrogacy.  If it is simply a matter of genetics then is the identity of a surrogate mother (as opposed to, say, an incubator in a prematurely delivered child) even relevant?

It is a big question and I have my opinion but wiser heads will have to decide what expressions such as "the child of his or her body" really mean.  We seem to know when it comes to thoroughbred bloodlines but not want to apply the same rules to ourselves.

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[colinp]

The High Court has ruled that Henry Thynn can be added as a beneficiary of the family trusts -  Surrogate-born son can inherit £200m Longleat fortune, court rules

[malcolm davies]

The decision is limited to whether Lord Henry can be included as a potential beneficiary of 3 family trusts.It was held that he may be,although there is no intention to do so at the moment(this is because his surrogate mother is American and he is a birth citizen of the US)There are potential tax issues needing attention before he is actually nominated a beneficiary.

As to the peerage,the succession was not in issue in these proceeding.Henry cannot succeed at present as he is not male issue of the Marquess and Marchioness-that matter requires legislation.

.

[S. S.]

Suppose Henry was the product of the Marquess's sperm and the Marchioness's ovum and only the fertilized conceptus was implanted into another woman, isn't he for all intents and purposes considered legitimate to succeed to a peerage, since he is conceived in a lawful marriage? Surrogacy isn't just carrying a man's spern in a donor's egg, which would render him illegitimate. 

S.S.

[malcolm davies]

SS,

      No because the child must be naturally born to be legitimate.

[marquess]

If this ever gets challenged in court in the future in regards to the succession to the marquisate,  there's a reasonable chance the claimant might win. 

[gorgo...@gmail.com]

Surrogacy and succession: What high-net-worth families need to know

Legal parenthood at birth
Jemma Hotta, partner at Oury Clark, explains the position in England and Wales: “In England and Wales, the surrogate will be the legal mother of the child at birth. If the surrogate is married, then their spouse will be the child’s father.”

For intended parents, particularly those who have invested emotionally and financially in a carefully planned surrogacy journey, that starting point can feel counterintuitive. Yet UK law does not prioritise genetics or private agreements at birth; instead, gestation and marital status are key factors.

The inheritance consequences are not symmetrical. Hotta continues: “If the surrogate (and potentially their spouse) does not have a will, the child will automatically be entitled to inherit a portion of the surrogate’s estate (provided their estate is large enough). However, the opposite is true for the intended parents. The child will not be entitled to inherit a portion of its intended parent’s estate unless and until a parental order is obtained.”

For families with substantial business interests, investment portfolios, property holdings or trust structures, that distinction is critical. In legal terms, a child born through surrogacy may have an automatic entitlement in relation to the surrogate’s intestate estate while holding no entitlement at all to the intended parents’ wealth until further steps are taken.

The importance of a parental order
The mechanism that resolves this imbalance is a parental order. Hotta outlines the process: “A parental order needs to be made in favour of the intended parents. This process involves an application to court and takes between 9 and 15 months to complete post-birth. Once a parental order has been made, this permanently ends the child’s legal relationship with the surrogate, and legal parenthood is assigned to the child’s legal parents.”

That timeline matters. A period of up to 15 months can elapse before legal parenthood is fully transferred and, during that window, vulnerabilities in succession planning may be exposed. As things currently stand, it isn’t possible for families to forward plan, as matters can’t be formalised in advance of the child’s birth. As Hotta makes clear: “A parental order can only be applied for after the child is born. There is no pre-birth legal process in England and Wales, and courts are not bound by a surrogacy agreement.”

For high-net-worth families, the absence of a pre-birth mechanism creates a certain vulnerability that must be factored into estate planning. If an intended parent were to die before a parental order is granted, the child’s position under the will or under intestacy rules could be uncertain, particularly where documents have not been updated to reflect the anticipated arrival.

Reviewing wills and historic trusts
Modern wills and trusts tend to reflect contemporary drafting practice. As Hotta notes: “In modern-day wills and trusts, a reference to your ‘children’ includes legitimate, illegitimate and adopted children (unless the will or trust expressly states otherwise).”

However, many substantial estates remain governed by historic instruments that were drafted in a different legal and social era. Hotta cautions: “Before 1950, adopted children were not within the definition of the adopter’s ‘children’. Historic trusts should therefore be considered to ensure that children born via surrogacy fall within the definition of potential beneficiaries.”

This point is particularly relevant for families with long-established trusts, landed estates or multi-generational structures, where capital and income pass through defined classes of beneficiaries. If the governing document contains narrow or outdated definitions, a child born via surrogacy may not automatically fall within scope.

Overseas arrangements and UK recognition
Many intended parents pursue surrogacy arrangements overseas, often in jurisdictions where contractual frameworks are more developed and processes appear more streamlined. Yet recognition in the UK is not automatic.

Hotta explains: “Surrogacy agreements are commonplace overseas. However, they are not legally binding in the UK. Intended parents need advice from an immigration lawyer to make sure they can bring their child back to the UK and from a family lawyer to assist with the application for a parental order.”

For internationally mobile families, this introduces another layer of complexity. Immigration status, nationality and domicile can all intersect with tax planning and succession structures. A failure to secure appropriate advice at an early stage can delay legal recognition of parenthood and, in turn, complicate inheritance planning.

The limits of peerage reform
In aristocratic families like the Baths, succession is governed not only by private documents but by the law of peerage. Reform has been debated, but progress has so far been limited.

Hotta observes: “Over the last decade, there have been multiple iterations of bills proposed to vary peerage law, be that to eliminate gender discrimination in the inheritance of hereditary titles or to include children born via surrogacy. However, they have all failed to pass due to lack of time and disagreements on the impact of existing titles. I therefore think that it is unlikely that peerage law is likely to change in the short-to-medium term, despite the rising use of IVF and surrogacy generally.”

https://luxurylondon.co.uk/private-office/family-private-law/surrogacy-and-succession-inheritance-law/