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?