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Olya

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« Reply #45 on: January 23, 2017, 08:57:19 PM »

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Hon Henry Richard Isaac Thynn (b 2016)
_. Viscountess Weymouth, wife of Viscount Weymouth, son and heir of the Marquess of Bath, had a son (by a surrogate mother) the Hon Henry Richard Isaac Thynn, born at Beverly Hills, California, USA, 30 Dec, 2016.

From: Peerage News, 9 jan 2017

--> I don't want to discuss anything to do with the grandchildren of the current queen and their children. Please don't go there. <--


I read the articles about this child, the difficulties of the mother during her first pregnancy and the reason they chose this method of having a second child.

I've read the phrase a child had to be 'of the body' of a wife in order to be an heir.

Has anything changed for the titled class to allow the Marquess to use a surrogate? Does this require approval of HM? Or is it simply a matter for the family? Or has this depended on how their individual family interprets whom an heir is and how it is connected to the father?  Do they file legal papers to affirm this type of arrangement for purposes of inheriting a title?
I'm not at all an expert in british law, succession, aristocrats etc but by "of the body" I think they mean there was not an adoptation process but the child has biologically come from the parents. Probably, with the relatively new method of surrogation, the law/the custom has to be clarified.

"Heirs of the body", or "of his body" or "of her body", are simply words of limitation which determine the class of persons to whom a devise of inheritable property passes according to law.   The inheritance of a peerage is merely the inheritance of a form of property akin to real property.  In the case of most peerages, they pass to the 'heirs of his body", meaning the peerage passes to the legitimate, natural, heir of the man to whom the grant was originally made.  The body in question is the man's, not his wife's, but till very recently one would expect a man's legitimate children would be born from his wife's body.  The old laws were quite complex but have been modified by statute,  and also by the common law which enables judges to re-interpret  laws based on the circumstances before them in a particular case.  Judges are often called upon to apply to modern situations laws which were made in earlier centuries when the situation now presented would not have been contemplated, and as a result the law is expanded.  I am not an expert in this field of law, but I do not think that it would, or should,  take much of a stretch by a willing jurist, or parliament, to expand the definition of "of his body" to include a child born from the sperm of a man which had been united with an ovum from his wife in a laboratory and gestated in the body of a surrogate.  The relevant body is his, not the woman who incubated the child, and as long as the genetic material matched samples from him and his wife and a declaration was obtained as to parentage, which is a process that is is available in respect of surrogacies, and which I mentioned in a previous post on this subject, I do not see that it would take a great leap to see the law changed to catch up with this modern reality and ensure that the biological child of this married couple, which would, if born in the usual manner, would otherwise automatically be entitled to take it place in the line and inherit.   The issue definitely needs to be clarified, and I think it is straightforward.  All the elements are readily available and determinable and it should not tax a willing brain too much.  I will not, however, holding my breath.

I do agree, the terminology does leave plenty of room for interpretation though - something that a lawyer would pounce on with rubbing hands if in the future someone contested an heir's legitimity due to surrogacy. When these terms were written, no one in their wildest dreams would have thought IVF possible, much less surrogacy. So with the changes in medicine and society the laws must be adjusted to protect heirs & estates.
Patriarchy is a little silly anyway, because anyone can be the father.. That's why it baffles me that only the male line can inherit. Like some suspect that many who inherited were actually illegitimate, but wives were desperate and did what they had to do (this was said in a lecture on Egypt, but the same I imagine applies to other cultures and eras).
Before I started writing I had all this more elegantly formulated in my mind and it connected better, but anyway, ya get my drift I hope 
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Herazeus
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« Reply #46 on: January 26, 2017, 08:57:39 PM »

Quote
Hon Henry Richard Isaac Thynn (b 2016)
_. Viscountess Weymouth, wife of Viscount Weymouth, son and heir of the Marquess of Bath, had a son (by a surrogate mother) the Hon Henry Richard Isaac Thynn, born at Beverly Hills, California, USA, 30 Dec, 2016.

From: Peerage News, 9 jan 2017

--> I don't want to discuss anything to do with the grandchildren of the current queen and their children. Please don't go there. <--


I read the articles about this child, the difficulties of the mother during her first pregnancy and the reason they chose this method of having a second child.

I've read the phrase a child had to be 'of the body' of a wife in order to be an heir.

Has anything changed for the titled class to allow the Marquess to use a surrogate? Does this require approval of HM? Or is it simply a matter for the family? Or has this depended on how their individual family interprets whom an heir is and how it is connected to the father?  Do they file legal papers to affirm this type of arrangement for purposes of inheriting a title?
I'm not at all an expert in british law, succession, aristocrats etc but by "of the body" I think they mean there was not an adoptation process but the child has biologically come from the parents. Probably, with the relatively new method of surrogation, the law/the custom has to be clarified.

"Heirs of the body", or "of his body" or "of her body", are simply words of limitation which determine the class of persons to whom a devise of inheritable property passes according to law.   The inheritance of a peerage is merely the inheritance of a form of property akin to real property.  In the case of most peerages, they pass to the 'heirs of his body", meaning the peerage passes to the legitimate, natural, heir of the man to whom the grant was originally made.  The body in question is the man's, not his wife's, but till very recently one would expect a man's legitimate children would be born from his wife's body.  The old laws were quite complex but have been modified by statute,  and also by the common law which enables judges to re-interpret  laws based on the circumstances before them in a particular case.  Judges are often called upon to apply to modern situations laws which were made in earlier centuries when the situation now presented would not have been contemplated, and as a result the law is expanded.  I am not an expert in this field of law, but I do not think that it would, or should,  take much of a stretch by a willing jurist, or parliament, to expand the definition of "of his body" to include a child born from the sperm of a man which had been united with an ovum from his wife in a laboratory and gestated in the body of a surrogate.  The relevant body is his, not the woman who incubated the child, and as long as the genetic material matched samples from him and his wife and a declaration was obtained as to parentage, which is a process that is is available in respect of surrogacies, and which I mentioned in a previous post on this subject, I do not see that it would take a great leap to see the law changed to catch up with this modern reality and ensure that the biological child of this married couple, which would, if born in the usual manner, would otherwise automatically be entitled to take it place in the line and inherit.   The issue definitely needs to be clarified, and I think it is straightforward.  All the elements are readily available and determinable and it should not tax a willing brain too much.  I will not, however, holding my breath.

Common law doesn't apply here. In practice, and ethically, this shouldn't be up for debate because we have common laws that cover surrogates, illegitimacy etc. However, peerage laws supersede common law such that what should be standard practise as a redult of common law, if not simple ethics, is not.

'Of the body' together with 'in legal marriage' ties husband and wife to the child in a way that excludes the surrogate or adoption. Parliament has not reviewed this and many other laws. We are still fighting gender inheritance laws even though there have been lots of cases debated and or settled in parliament that should have triggered a change in law as a matter of course or due to the precedent set by these cases.

If we can't change a simple gender law, it's that much harder to change a more complex law involving surrogacy and adoption. And yet in common law these situations are no longer an issue.
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« Reply #47 on: January 26, 2017, 09:40:30 PM »

The laws that govern those heritage lines are IMO in contradiction to the common laws, and as such it seems rather strange that can be uphold today. But they do. Now this thread is about the british aristocracy and I don't want to derail it, but the Berleburg case comes to mind. The Berleburgs are german, of course but they have the house law that any heir or even current holder of the title will be automatically disinherited upon entering a Mesalliance. Thus the current lord of manor Gustav is basically barred from marrying his longtime partner and having children with her. I find it curious that common law in Germany should allow this in contradiction to normal common law. I don't know about British law, but most countries have by now brought the rights of illegitimate children in line with legitimate issues and consider adopted children as such. So to rob the child of his inheritage solely by reason of an ancient heritage law, which is not consistent with common law IMO should be illegal.
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« Reply #48 on: January 28, 2017, 03:08:57 AM »

I think there could be some confusion here as to what common law is under the British legal system.  It is not a set of laws that apply to commoners only and not to peers.  Common law is merely the term applied to judge-made law, or, more properly, the law as declared by judges.  Judges apply, to the facts and circumstances before them, the law as it has always existed, but when they have to deal with new situations that have not been subject of judicial consideration previously - where there is not a precedent - they are in effect making new law.  As opposed to that judge made - or common - law is statute law, which is the law made by parliament, but the judges still have the job of interpreting what those statutes mean, and a judge's interpretation might be very different from the one intended by parliament and the parliamentary draftsman.  

There are some special rules that apply to peers, such as the fact that applications relating to peerages, like a claim by a person for a declaration that he is entitled to a particular peerage, go straight to the House of Lords rather than starting in a lower court, and the House of Lords refers the matter to a Committee for Privileges to determine the matter and report.  And there are special rules that apply to each particular peerage, which are the rules set out in the charter or letters patent issued by the monarch who created the peerage.  However once a peerage has been created, it is treated as a type of real property, like land, rather than personal property, like a car.  There are some other special rules that have been determined, according to common law principles, to apply to peerages because of the "peculiar nature of hereditary dignity" but, as far as I can tell, the rules about descent to lineal issue seem to be the same as those which apply to other forms of real property which apply to commoner and peer alike.    

My authority is Palmer's "Peerage Law in England" published in 1908.  There could have been some new rules declared by judges or introduced by parliament since then, but I am not aware of anything that affects this particular issue.  I admit I have not done an exhaustive search though.

I do not see a necessary connection between the gender inheritance issue and this one.  I don't see why this one issue cannot be determined independently.  I see this as only requiring recognition of what - to me, anyway - is a very simple and straightforward fact that a child created from the reproductive cells of a particular man and a particular woman is the child of those people's bodies even though it was incubated in another woman's womb.  The fact it was conceived outside the woman's body should not matter.  Conception always takes place outside the man's body, and it is the man's body that is the important one in this case because it's his genetic material that is the key to the inheritance.  Whether conception took place inside the woman's body or in a test tube should make no difference, in my opinion.   It is that couple's  biological child, just as it would be if it was conceived naturally and carried inside its biological mother's womb.   In my opinion, anyway.  I would love to be on the legal team that got to argue this case.  

ETA:  After writing the above, I did a bit of a google and found something interesting in Hansard.  On 6 December 2013, the House of Lords was discussing amendments to the Equality (Titles) Bill which was the one designed to allow females to inherit peerages.  Their was a fair bit of discussion about a proposal for an amendment to add:  "For the purposes of this Act, "female heir" includes a daughter conceived through the use of the gametes of both the incumbent and his wife but carried by a surrogate mother".  There was no resistance to the notion of allowing a child born of a surrogate where there was clear evidence that the child was the biological child of the peer and his wife.  This causes me to believe that the law on that is particular, narrow, issue could be amended in the not too distant future as there seems to be no objection in principle.  The Lords might oppose the gender equality legislation or get twitchy about the notion of allowing illegitimate children to take, but this single issue doesn't threaten them.  Someone who cares enough just has to make an application.
« Last Edit: January 28, 2017, 03:13:58 AM by Margaret » Logged
Herazeus
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« Reply #49 on: January 28, 2017, 05:24:34 AM »

I think there could be some confusion here as to what common law is under the British legal system.  It is not a set of laws that apply to commoners only and not to peers.  Common law is merely the term applied to judge-made law, or, more properly, the law as declared by judges.  Judges apply, to the facts and circumstances before them, the law as it has always existed, but when they have to deal with new situations that have not been subject of judicial consideration previously - where there is not a precedent - they are in effect making new law.  As opposed to that judge made - or common - law is statute law, which is the law made by parliament, but the judges still have the job of interpreting what those statutes mean, and a judge's interpretation might be very different from the one intended by parliament and the parliamentary draftsman.  

There are some special rules that apply to peers, such as the fact that applications relating to peerages, like a claim by a person for a declaration that he is entitled to a particular peerage, go straight to the House of Lords rather than starting in a lower court, and the House of Lords refers the matter to a Committee for Privileges to determine the matter and report.  And there are special rules that apply to each particular peerage, which are the rules set out in the charter or letters patent issued by the monarch who created the peerage.  However once a peerage has been created, it is treated as a type of real property, like land, rather than personal property, like a car.  There are some other special rules that have been determined, according to common law principles, to apply to peerages because of the "peculiar nature of hereditary dignity" but, as far as I can tell, the rules about descent to lineal issue seem to be the same as those which apply to other forms of real property which apply to commoner and peer alike.    

My authority is Palmer's "Peerage Law in England" published in 1908.  There could have been some new rules declared by judges or introduced by parliament since then, but I am not aware of anything that affects this particular issue.  I admit I have not done an exhaustive search though.

I do not see a necessary connection between the gender inheritance issue and this one.  I don't see why this one issue cannot be determined independently.  I see this as only requiring recognition of what - to me, anyway - is a very simple and straightforward fact that a child created from the reproductive cells of a particular man and a particular woman is the child of those people's bodies even though it was incubated in another woman's womb.  The fact it was conceived outside the woman's body should not matter.  Conception always takes place outside the man's body, and it is the man's body that is the important one in this case because it's his genetic material that is the key to the inheritance.  Whether conception took place inside the woman's body or in a test tube should make no difference, in my opinion.   It is that couple's  biological child, just as it would be if it was conceived naturally and carried inside its biological mother's womb.   In my opinion, anyway.  I would love to be on the legal team that got to argue this case.  

ETA:  After writing the above, I did a bit of a google and found something interesting in Hansard.  On 6 December 2013, the House of Lords was discussing amendments to the Equality (Titles) Bill which was the one designed to allow females to inherit peerages.  Their was a fair bit of discussion about a proposal for an amendment to add:  "For the purposes of this Act, "female heir" includes a daughter conceived through the use of the gametes of both the incumbent and his wife but carried by a surrogate mother".  There was no resistance to the notion of allowing a child born of a surrogate where there was clear evidence that the child was the biological child of the peer and his wife.  This causes me to believe that the law on that is particular, narrow, issue could be amended in the not too distant future as there seems to be no objection in principle.  The Lords might oppose the gender equality legislation or get twitchy about the notion of allowing illegitimate children to take, but this single issue doesn't threaten them.  Someone who cares enough just has to make an application.

Re: Hansard debate on gender inheritance, surrogacy, illegitimacy.........this is a debate they have every time a new case pops up. The most recent such debate was in 2015. In principal, they all agree that it's nonsense not to amend the law, they don't feel threatened, it should be in line with common law etc, BUT they never follow through.

Infact if you read each and every such debate they have, 2/3 or greater part od debate is not really a debate. It's more of an echo chamber in which they all agree in principle on the common law version of how it should be. Yet, they never follow through.

The 2 repeat issues that cause a lack of follow through each time are:

1. The Peerage in Ireland, Scotland and England have different laws and never the twine shall meet nor can they be applied in other countries other than their own. These different laws are thought to be so iron clad that they naturally block any attempts to change the law. Any attempts at intersectionality hit these iron clad walls.

2. Due to above, the Lords feel that there is limited chance of passing a bill into law.

So they debate and debate and amend and debate and do nothing. It makes for very frustrating reading when you read each debate seating.

In reality, they treat each case as a unique, one time only deal and grant or not that case only. In the debates, they may quote the case as showing precedent, but they never use it as basis to pass or force a law.
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« Reply #50 on: January 28, 2017, 05:55:10 AM »

 Star Thank you Herazeus for your two very complete replies.

 Champagne Thanks to everyone else who replied as well.
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« Reply #51 on: January 28, 2017, 06:02:24 AM »

From my earlier post 13 January:

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Mr Christopher John Reith, who died 23 October, 2016, aged 88, was the son of Lord Reith, first Director General of the BBC, & he disclaimed this barony for life on his father's demise.

...Christopher Reith disclaimed the barony of Reith for life, 21 April, 1972.

...he had issue, a son James, and a daughter, Julie. The son, born 2 June, 1971, succeeds as 3rd Baron Reith.

From: Peerage News, 9 Jan 2017

There was no holder of the title while Christopher was alive.

How is it that he was allowed to refuse the title and it remains in abeyance (for my lack of correct vocabulary for this situation) for his lifetime and then be conveyed to the son? There was no 2nd Baron of Reith? What does it mean to the individual that a title was disclaimed? Is it political? Does it affect properties? Does it remove obligations to the  crown?

Can someone explain this situation and why it might happen? I can't find an explanation and so I ask here.

Thanks in advance.


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« Reply #52 on: January 28, 2017, 06:29:13 AM »

It was part of the Peerage Act of 1963 that peers could disclaim their peerages for life. That is, their lifetime. It had to be done within one year of inheriting the title. All rights and privileges connected with the peerage concerned were removed and the peer and his wife became Mr and Mrs. The peer concerned couldn't inherit any other title in his lifetime. Most who did so in the past were politicians and disclaimed their titles so they could sit in the House of Commons and not the Lords. Property is not affected. After the peer's death his heir inherits the title as usual, and everything reverts back to normal. It's typically British though that, although, Christopher Reith did not use his title, technically, for succession reasons, he was still Baron Reith, (the 2nd Baron.)
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« Reply #53 on: January 28, 2017, 07:11:23 AM »

Thank you rosella!
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