Was Archie Mountbatten-Windsor Born Via Surrogacy?

I think he was.  And I don’t think it should matter in terms of his succession to the British throne.  Meghan should not have had to risk a potentially dangerous pregnancy in order to protect Archie’s future interests. However, British Peerage law does not agree with me.  So let’s discuss. 

British Laws on Surrogacy for Inheritance of all property other than the throne and Peerage titles: 

First, why do I think Meghan and Harry opted for surrogacy?  This I think is a straightforward answer.  Meghan was technically a geriatric pregnancy while pregnant with Archie.  With modern science many women can carry successfully if they are geriatric, but we know Meghan is very concerned about how she is portrayed in the media.  I could not imagine the scrutiny she would endure if she had suffered a miscarriage and I wouldn’t want her to go through that if she didn’t have to.  Plus, she was still a new royal and was in a stressful environment.  She probably had a long talk with her doctor, Harry, and the rest of the family about her concerns and likely they came to a solution together. 

I want to put a disclaimer here: I have no problems with surrogacy.  I know how important motherhood is to so many women, thus I totally understand why someone would turn to surrogacy for their child.  Some women suffer debilitating conditions and carrying a child is impossible, and surrogacy is their only option.  I do not prescribe to the opinion that surrogacy is mainly undertaken by rich celebrities who don’t want to get fat.  I think it serves as an important avenue to parenthood for women who can’t carry a full-term pregnancy, or who have concerns about carrying. 

I also have no problems with Meghan and Harry using a surrogate.  Ultimately, I want what is best for all of them.  That is, if a surrogacy was necessary, I think they should have been allowed with no repercussions on Archie’s future interests. 

So, I think they used surrogacy, what is the process in the UK?  Well, it’s actually different than here in the US. 

There are two types of surrogacy in the UK, one is the traditional type.  I will only focus on this process in this blog post, because I believe this is the process the Sussexes used.  In a traditional surrogacy, in-vitro fertilization is used to impregnate the surrogate.  The genetic material comes from both of the “intended parents” (in this situation, Meghan and Harry are the intended parents) and the child will have no genetic connection to the surrogate.  It’s ideal for the intended parents to us this process because once they petition the court for legal parent rights there is a strong presumption in their favor as they have genetic links to the child. 

The government advises drafting a “surrogacy agreement” before insemination.  This is vital, because it will outline expectations and duties of each party.  The parties to this agreement are, the intended parents, the surrogate, and the surrogate’s spouse or civil partner.  And in the Sussexes situation, staff from Buckingham Palace and Clarence House would also likely be involved in this agreement.  While the agreement is a good idea because it makes everything clear about how the surrogacy will proceed, it is not enforceable by law.  Thus, if someone doesn’t live up to their end of this agreement, no one can be sued in court. 

Once the child is born, the surrogate and if the surrogate is married or in a civil partnership, the partner are the legal parents.  As I said earlier, in the US you can contract around this, that once the child is born the surrogate can have no connection to the child.  But that’s not important, because the UK seems to have a straightforward system to proceed from birth. 

The government advises that once the baby is born, the intended parents should immediately take physical custody of the child.  The child should have no further contact with the surrogate mother, and I think this is good practice.  Also, after the birth the intended parents will have to file for a parental order in a family court.  In court the Judge will consider the situation and then in most situations, terminate parental rights of the surrogate and partner and transfer all rights to the intended parents.  This is a very important step in a surrogate pregnancy, because once this occurs there are no legal connections between the surrogate and the child.  She is like a stranger, and in the eyes of the law, the two parents *are* the parents of the child. 

Worst case scenario for the Sussexes would be if the surrogate elected not to voluntarily sever her legal parent rights.  Meghan and Harry would have to take it up in court to have a Judge rule in their favor.  There is a strong presumption that the Judge would, especially if the Sussexes chose the traditional surrogacy method, because they would be genetically linked to the child and the surrogate mother would not.  The UK government also states that very in a very few cases would this event happen, and in almost all scenarios, the surrogate is a professional who understands her role in the parent’s road to parenthood.  I also don’t think a surrogate would “go rogue” on the Sussexes. 

British Laws regarding inheriting the throne and Peerage Titles, specifically, The Dukedom of Sussex: 

  

Now let’s talk about the throne and the dukedom of Sussex.  This where it’s going to get dicey.  I’ve had a very wonderful follower fill me in on the intricacies of the UK Peerage system (if you are American, give yourself a hug because you can bring your family members into court to settle disputes if need be) but I still don’t think Archie faces a huge barrier to inherit from his father, and ultimately, great-grandmother.   

In England, (we will not go into Irish or Scottish Peerage law, that’s too complicated and not at issue in Archie’s situation) all protestant descendants from Sophia of Hanover are entitled to inherit the throne.  These heirs have to be “of the body” which is where things get complicated if the Sussexes used surrogacy.  The phrase “of the body” means exactly the same thing it did in 1689 when Parliament drafted the legislation.  And, at the time it meant children born from the wedded wife of the heir, leaving no room for any other status of child. 

Current laws regarding succession to titles in the British peerage, and the British throne, exclude children who are adopted, conceived and carried via IVF, transgender and other legal statuses.  The only children who can inherit a father’s aristocratic title are sons who are “of the body.”  Now the throne has changed, in that women born after 2013 are not displaced in the line of succession by a younger brother.  This is still not the case for all other British peerages.  The current laws favor only natural born sons, and titles will go to a distant relative if there are no natural sons, or in extreme circumstances, titles will go extinct. 

The Dukedom of Sussex is no different.  Because the title can only be inherited by “the first-born son of the body” and under strict Peerage laws, if Archie were carried via a surrogate, he would not be able to inherit his Father’s title.  The fact that Archie is Harry’s genetic son, and even legal son in the eyes of the common courts has no bearing on whether he could inherit. 

If you’re anything like me, you’re probably thinking that Meghan most likely did carry Archie in order for him to be present in the line of succession and for him to inherit his Father’s Dukedom of Sussex.  I think this is likely the case, because otherwise something like this would have gotten out.  But let’s consider if they had used a surrogate, how could they have gotten around these ancient Peerage laws?  I have a few theories. 

First, the Sussexes could have circumvented the Peerage laws (with palace approval).  In my research into these ancient Peerage laws, I discovered that in order to have a title stripped, or to rectify a wrong situation, a claim has to be filed in the House of Lords.  Until this happens, titles will pass upon death to whoever appears to be the first born natural son.  An example of this is present in an academic work that I have been supplied with from a wonderful follower.  In this article, a title passed seemingly from father to son with no problems.  Several years passed during which the title holder was the recognized titled aristocrat.  But then, a distant relative of the title holder’s father brought a challenge in the House of Lords.  The Lords conducted an investigation in which they discovered that the current title holder had no genetic connection to his father.  The reason being is that the wife had had a child with another man, but the father had recognized and always treated the son as his own son.  In every other sense of inheritance, the child would have been legitimate.  However, under Peerage laws his title was stripped from him and granted to the distant relative. 

How could this work for Archie?  Well, (and this is speculation on my part) it seems to me that the Peerage laws operate in a more passive manner than other laws of the land.  There are not police out enforcing and arresting aristocrats for trying to pass titles to their adopted children.  But in all of those situations, someone in the family has brought a claim to the House of Lords.  Thus, in Archie’s situation, he could theoretically still inherit his father’s dukedom if no claim is made in the House of Lords.  It would be paramount that Harry have no natural sons, because he would then be the one to challenge Archie’s right to inherit the title.  And if Archie had been carried via surrogacy, the natural son would prevail. 

As for the throne, I think the same thing is happening.  No one in the family is likely to challenge Archie’s right to inherit the throne because he is very far down the line of succession. AND the royal family is a family who are understanding with one another.  I think there is cooperation and respect happening within the family, and several members would also recognize the futility in challenged Archie’s status, because they would not move up significantly in the line of succession. 

My opinion on the whole thing: 

I hope readers have found this post interesting.  Ultimately, I think inheriting peerages should be reformed to allow legal children to inherit in the same manner as natural children.  And I think in terms of succession to the throne, Archie should be treated no differently.  It’s the twenty-first century, it’s time our concept of the “family” catches up to what a modern family actually is.