Judge orders surrogate mother to hand child over to its intended same sex parents

Posted by Amy Fullerton on
In the recent case of H (A Child: Surrogacy Breakdown) [2017] EWCA Civ 1798 the Judge ordered the surrogate mother to hand the child (H) over to its intended same sex parents ((A) and (B)). The Judge also ordered contact with the surrogate parents (the surrogate (C) and her husband (D)) who then appealed. The Court of Appeal, in dismissing the appeal ruled that the Judge had rightly undertaken a conventional welfare approach to an unconventional family structure.

In December 2016 a Mrs Justice Theis concluded it would be best for H, born of a surrogacy arrangement, to live with H's intended male, same-sex parents, A and B.

In this case, C and D had five children of their own and C had been a gestational surrogate twice before. The parties met online in April 2015 and signed a surrogacy agreement in August 2015. The embryo transfer occurred in Cyprus in September 2015 using a donor egg from a Spanish egg donor and sperm from both A and B. A was later confirmed to be the biological father of H.

By early March 2016, the relationship between the parties had deteriorated to such an extent that there was no communication between them. Towards the end of March 2016 C and D sought legal advice and decided that they were not going to hand the child over to A and B. During this time, A and B were trying to contact C but to no avail.

H was born in late April 2016 and the day before the child's birth, C and D's then solicitors wrote to A and B informing them of their clients' decision to no longer follow the surrogacy agreement. Despite being in contact with solicitors, A and B were not informed of H's birth until approximately 10 May 2017. By this time, C and D had registered H's birth with the name they had chosen, rather than the name chosen by A and B. A and B issued proceedings and a shared care arrangement was put in place until a hearing could be held to determine the case.

Legally, although C has no genetic connection to H, as the child's gestational mother, she is the child's legal mother. D, who again has no genetic connection to the child (unlike A), in virtue of being married to C, is to be treated as the child's legal father. C and D are therefore H's legal parents and this would only change on the making of a parental or an adoption order. During the proceedings, A and B obtained parental responsibility of H in light of the child arrangements order of shared care. H therefore has two legal parents and four adults who have parental responsibility.

Although the original intention of the parties was to obtain a parental order in favour of A and B once H had been born (which would have transferred legal parenthood from C and D to A and B), surrogacy arrangements are unenforceable. Furthermore, parental orders are unique as they will only be granted where the legal parents unconditionally agree, which they did not in this case.

At the hearing, the Judge held that it would be best for H to live with A and B and to have limited contact six times a year with C and D. No parental order was made and therefore A and B remain H's legal parents. C and D appealed.

In dismissing the appeal, LJ McFarlane stated that along with the child's welfare, the child's gestational and legal parentage, genetic relationships and the manner in which the intended surrogacy came about were all important factors of deciding where the child should live. Whilst the legal parents had the right to change their mind that did not necessarily mean they had the right to keep the child. LJ McFarlane endorsed the observations of Mrs Justice Theis who had commented that this case "demonstrates the risks involved when parties reach agreement to conceive a child which, if it goes wrong, can cause huge distress to all concerned".

This case is a reminder to seek specialist advice before entering into any surrogacy arrangements to avoid any difficulties after the child is born. Please contact a member of Blake Morgan's Family team should you wish to obtain advice.

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Amy is a Solicitor in the Family Law team, based in London.

Amy Fullerton
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