Surrogate mom now wants access

Dear Mrs Macaulay,

My husband and I had fertility issues some years ago, and because we couldn’t afford fertility treatments, I allowed him to be with a family friend for the sole purpose of having a child. She had six other children, and so she agreed to relinquish her rights to the child (not legally) and allow us to raise him. She migrated without her other children, and my husband and I raised our child for nine years, with no contact from the mom. The biological mom and my husband are on the birth certificate, but I am on all his school and other documents as his mother. This woman has since resurfaced and says she wants access to her child, as her conscience can’t allow her to ignore the fact that she has a child out there. Our son doesn’t know any of the details of his birth and thinks I am his mom. How can we handle this legally? We are willing to allow her some access as just a family friend, but we don’t want him knowing that this is his biological mother.

Oh dear, this is why I keep advising people not to do anything or take any steps which touch on legal rights without consulting an attorney about the existing and possible future consequences.

You see, there is no law in Jamaica as yet which deals with or regulates surrogacy arrangements. Even if you have a written agreement, it will not be recognised as being legally binding. In other words, when you enter into a surrogacy arrangement, you are merely taking your chance that the surrogate will honour the agreement.

It is good that your husband is registered on the child’s birth certificate. He has all the legal rights of a father under the law. You, however, do not, and even the fact that you are in all the school and other documents as his mother does not make you a person with legal rights. You are really like a guardian mother — the person who takes care of him and who the father permits to do so. You have no legal right or recognition as his mother.

The surrogate mother is his legal and registered mother and she retains all the attendant rights of a mother, including access/visitation rights until you and your husband take steps to obtain orders for legal custody and care and control by an application to the court, or you apply to adopt the child.

I seriously advise you that to enter another non-binding arrangement with the surrogate mother should only be a temporary measure, because she could decide to be more intrusive in the child’s life, whatever your new arrangements are. She has proved to be quite selfish in thinking only about herself now after nine years, and not about the effect her appearance would have on the child. She is at minimum irresponsible and reckless, without any consideration of what her actions would cause to others.

You should, therefore, apply for legal custody, care, and control of the child now! You and your husband should explain to the mother that this would be in the best interests of the child, so that he is not traumatised by her sudden appearance in his life as a “mother“ when he already, for nine years, has only known you as his mother. The application for legal custody and care and control would name your husband and the surrogate mother as the respondents, and so she must be served and appear at the hearing. Her demand for access should also be put before the court, which has to decide the application and make orders which are in the best interests of your son, and she shall be legally bound by the orders made by the court. Any breach by her would be in contempt.

This, to me, is the best way to safeguard your son. The surrogate mother would still be registered as his mother on the birth certificate, but her rights to custody, care, and control would legally be yours, and her rights to access would only be as ordered by the court.

You and your husband should also, after the above, discuss the issue of you applying to adopt your son. This, if the surrogate agrees, would terminate all her rights and obligations to the child and you would have your name replace hers in the birth registration records. Or you can be satisfied with obtaining the court orders granting you legal custody, care, and control of the child; and access, if the court agrees and makes specific orders as to its frequency, its length, the place, and how she should present herself to the child so as not to identify herself in any way as his biological mother by any thing she says to him.

I do not in any way or form agree with you and your husband’s willingness to allow her some access as just a family friend, since you do not want your son to know that she is his biological mother. How do you think you can curtail her words without the weight of a legal order, which you should and could have obtained anytime during the nine years she was away and completely silent? This fact can be very effectively used in the course of your application for custody, care, and control and would assure your success in obtaining your order.

You and your husband cannot seriously mean to rely on this woman to keep to any agreed access. Do you seriously want to put your hands in the fire with this woman twice and gamble with your son’s sense of security and trust in his parents? So please retain an attorney-at- law who has a family practice/experience and put all the facts to him or her. Please act on the matter legally through court orders and so secure your child’s future factually, emotionally, and psychologically as best you can and do not leave it in the hands of an untrustworthy person, who was your erstwhile family friend. It is up to you to act properly and legally this time before the worst happens.

All the very best to you, your husband, and son.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to allwoman@jamaicaobserver.com; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide private, personal responses.