Source: Getty | (L) Marchioness of Bath, (R) Marquess of Bath
A High Court ruling allowing the Marquess of Bath’s younger son, born through surrogacy in the United States, to potentially benefit from the family’s £215 million trust fund has reignited debate over how British law treats children born via surrogacy.
The case centred on nine-year-old Henry Thynn, the second son of Ceawlin Thynn, the 8th Marquess of Bath, and his wife Emma, Marchioness of Bath. Henry was conceived using the couple’s sperm and eggs but carried by an American surrogate after Lady Bath suffered serious medical complications during her first pregnancy and was told another could prove fatal.
While the family’s three historic trusts were designed to provide for future generations, the legal wording posed a problem. The trust documents retained “pre-1970 common law meanings” of terms such as “child”, “grandchild” and “issue”, meaning beneficiaries were traditionally understood to be “legitimate” children born naturally within marriage.
Because Henry was born through a surrogate in the United States, lawyers argued there was uncertainty over whether he automatically qualified as a beneficiary under the historic wording of the settlements.
In the High Court, Matthews HHJ acknowledged that such a question could never previously have arisen in law before the development of IVF and embryo transfer technology in 1978. The trustees therefore sought court approval to create powers allowing Henry to be added formally to the class of beneficiaries in future.
The judge ultimately approved the proposal, concluding the trustees had acted “properly and rationally”. He noted that excluding Henry while recognising his older brother John would create an obvious unfairness within the family.
The ruling means trustees may now add Henry, and his future descendants, to the family trusts at a later date, although they have delayed doing so immediately because of possible American tax complications.
The decision has already prompted calls for wider legal reform. Trusts and inheritance lawyer Sarah Aughwane said the case demonstrated how Britain’s legal framework “has arguably failed to keep up with the modern concept of family,” particularly in cases involving international surrogacy arrangements.
The judgment also highlights the rapidly growing use of surrogacy in Britain. The number of parental orders transferring legal parenthood from surrogate mothers has risen from around 100 in 2011 to more than 500 last year.
SPUC’s Communications Manager, Peter Kearney, says: “Advancing reproductive technologies are increasingly forcing centuries-old legal and moral assumptions about parenthood, inheritance, and family life into uncharted territory. The problem with separating the creation of children from their natural parents by adding unrelated birth mothers and other complications from surrogacy is the upending of traditional understandings of lineage. It means that resources are wasted on pandering to a few who seek unorthodox routes to parenthood.
“SPUC is thankful for the life of Lord Henry but acknowledges the difficulty on him and other surrogate children when adults who believe they have a right to children procure them in ways that pervert the normal procreative act. The British government must follow the example of Italy and crack down on the exploitative international surrogacy industry.”
