Surrogacy Gone Wrong – High Court Orders Mother to Hand over Child to Gay Couple

Wednesday 3 June 2015

About 2,000 children are thought to be born to surrogate mothers every year in the UK. However, unlike the comprehensive framework adopted in certain countries there exists a lacuna within family law where some semblance of a statutory framework covering the issue seems largely overdue. There exists no infrastructure, psychological screenings, contracts or anything akin to the comprehensive system implemented in the U.S.A.

Simply put, according to UK law, any form of commercial surrogacy is banned; the woman who gives birth is the legal mother and her husband, if she is married, usually becomes the legal father; that remains the case even if donor eggs and sperm are used. That’s it.

To compensate, judges have an increasingly wide discretion when deciding cases involving surrogacy. As the court’s principle remains concern remains the child’s welfare cases when problems arise between surrogates and commissioning couples it must decide a) where the child will live and b) how parental responsibility will be allocated entailing massive implications for the parties moving forward after the court proceedings have been decided.

The burden of proof that parties are required to discharge is that they must show that it is in the best interest of the child, on the basis of probability, that their needs are best met by being with them. However, notable emphasis has recently been placed upon the initial intentions of the parties.

In H v S (Surrogacy Agreement) [2015] EWFC 36 the parties were at loggerheads with the biological father and his boyfriend claiming that they had reached an agreement with the mother that she would act as their surrogate so that they could have a child who would be a part of their family. Contrarily, the mother claimed that the child’s biological father had agreed to be merely her sperm donor.

Ms Justice Russell, sitting in the High Court, held in favour of the men after finding that the mother had indeed initially agreed to be a surrogate before the child’s conception finding that it was in the best interests of the girl that she grow up with her father and his partner noting the mother’s best efforts to frustrate contact and minimise the role that the men had played up to present in the child’s life. In coming to her decision, she made specific reference to the original intention of the parties in that: “the pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend; this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place […] Therefore [the girl] living with [the two men] and spending time with [the woman] from time to time fortunately coincides with the reality of her conception and accords with [the girl’s] identity and place within her family.”

Whilst this may provide a catalyst for greater emphasis to be placed upon intention which may appease some, what is should do is serve to quicken the rate at which the newly formed government injects greater security and certainty into an outdated system. The parties could have saved considerable expense, time, effort and emotional pain had a surrogacy agreement been set up outright although this is not currently possible under UK law.

It’s quite possible that the discretion afforded to judges through S.1 (1) Children Act 1989 remains a catch all but in some instances this discretion will not always ensure that those initial intentions are fulfilled nor will it ensure that hopeful couples will be able to remain safe in the knowledge that there remains no legal basis upon which they will actually be the child’s parents in the event of a later dispute.