High Court rules baby should stay with surrogate after ‘Facebook’ surrogacy arrangement ends in bitter dispute

July 3, 2016
High Court judge Ms Justice Russell has ruled that a baby boy should remain living with the gestational surrogate who carried him, after a UK surrogacy arrangement went badly wrong.  The case is a cautionary tale of the risks for all sides where informal surrogacy arrangements are made without strong foundations.

The intended parents were a same-sex couple (already fathers to twins through surrogacy) who wanted to extend their family.  They met their surrogate (X) through a surrogacy Facebook group where, the judge said, “there is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum”.  X was a vulnerable young woman in her early 20s with learning difficulties.  The three signed a template surrogacy agreement following a brief meeting at a fast-food outlet, and quickly after flew to Cyprus for IVF at a fertility clinic.  No time was spent building the relationship or exploring the key issues before X became pregnant with twins conceived with donor eggs and one of the fathers’ sperm.

The relationship between the parties quickly started to show strain, with X feeling that the couple’s treatment of her was “unsympathetic, demeaning and demanding” and that they regarded her only as a vehicle for achieving their family.  Tellingly, the couple had also fallen out with their previous surrogate, and the court was highly critical of the lack of sensitivity they had shown her, as well as the subsequent lack of care and appreciation they showed toward X.

When X miscarried one of the babies, she was encouraged by the person who ran the Facebook group to tell the couple that she had miscarried both.  In fact, X remained pregnant and gave birth to Z.  The intended parents applied to court shortly before the birth and there followed a bitter legal battle about who Z should live with.

In disputed surrogacy cases, the law which applies is the same as in relation to any other disputes between a child’s parents.  The task before the court was therefore simply to decide who it was in Z’s best interests to live with.  Ms Justice Russell heard evidence from all parties, as well as an experienced guardian appointed to speak for the child, and a psychologist (Dr Willemsen).  She considered the ability of both X and the couple ‘to provide a secure, loving and safe home in which Z can best “mature into a happy and balanced adult and to achieve his fullest potential as a human”.’  She concluded that there was ‘little or nothing between the Applicants and X in respect of the physical surroundings or physical care’ but that X was better able to put Z first and to meet his emotional needs.  X was providing a warm and nurturing environment for Z and appreciated his long term need to have a relationship with his two fathers.  In contrast, the fathers were unable to acknowledge X as Z’s mother or to accept the bond she had developed with him, and the court had no confidence they would sustain a relationship with X if they were given care.  Criticising the two men, Russell J ordered that Z was to continue living with X, and that the fathers should have bi-monthly contact without overnight stays.

The case does not paint a pretty picture of the online world of ‘independent’ surrogacy in the UK, and we know very well at NGA that it can be a murky world.  Without screening or support, and without any legal regulation, it is all too easy for arrangements made online to be set up on shaky and imbalanced foundations, which quickly crumble when there is no support to help resolve any issues.

However, it is also important to say that disputed UK surrogacy cases are incredibly rare.  There have been only three other disputed surrogacy cases in UK legal history, and the overwhelming majority of arrangements (including ‘independent’ surrogacies) are positive stories of fulfilment for all.  Well-managed surrogacy involves mutually respectful and equally balanced arrangements, where each party decides on a free and informed basis to proceed and there is clarity about everyone’s expectations.  There are many such surrogacy arrangements in the UK.

However, UK law currently provides no protection to anyone entering into a surrogacy arrangement. There is no legal process for people to follow at the outset, no standard to follow, no checks and balances; the law creates a complete vacuum of legal process until after a child is born, and that creates risk.  And with the UK’s non-profit agencies (Brilliant Beginnings, COTS and Surrogacy UK) having closed their doors to new intended parents because of the shortage of UK surrogates, we are sadly likely to see more poorly managed surrogacy arrangements like this hitting the courts.  As the judge in this case said “This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes“.

We have been campaigning for a better legal framework for UK surrogacy for many years.  Following the ruling in our Re Z (2016) case about the law breaching the human rights of single parents, the government has indicated that it is considering reviewing UK surrogacy law.  This case is yet another which shows just how desperately reform is needed.

We have started an online petition which you can sign here: https://www.change.org/p/uk-government-it-s-time-to-review-uk-surrogacy-law

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