Intended parents considering surrogacy often worry about surrogacy agreements not being binding, and fear what might happen if the surrogate does not hand over the baby at birth. Equally many surrogates fear that the intended parents will not assume responsibility for their child. In fact, serious disputes of this kind between parents and surrogates are very rare.
There have been only a handful of UK reported cases dealing with UK surrogacy arrangements in which the surrogate has not handed the baby over at birth. Each case has been dealt with under the framework of child arrangements orders, where the court has considerable flexibility to decide who a child should live with. The paramount consideration is always what is in the child's best interests. Find out more about children disputes and how they are dealt with.
In Re N (2007) a traditional surrogate became pregnant following home insemination but feigned a miscarriage. The parents later discovered she had given birth to a boy and applied to the court for a residence order (now called a child arrangements order). The Court of Appeal upheld the decision made by a lower court that the child should live with them rather than the birth mother, on the basis that this was in the child's best interests and the intended parents were more likely to promote contact with the birth mother than the other way around. The court decided that the fact that the surrogate was married (and therefore neither intended parent was a legal parent) was not material.
In Re TT (2011) a single traditional surrogate became pregnant following a match made on the internet and home insemination. The parties fell out during the pregnancy and the surrogate did not hand over the child at birth. The intended parents (the biological father and his wife) applied for a residence order (now called a child arrangements order). The court criticised all parties (with none of them found to have told the truth), but decided that it was in the child's best interests to remain with the birth mother.
In H v S (Surrogacy Agreement) (2015) a single woman deceived her friend and his same-sex partner into conceiving a child with her on the basis that they would be the main carers, but then set out to denigrate them and exclude them from the baby's life. After a 15 month court battle, the High Court ordered that the little girl should live with the fathers, since they were better able to meet her long term emotional needs and ensure she had a positive relationship with all her parents.
In Re Z (2016) a same-sex couple met a surrogate online (who it later transpired was vulnerable and had learning difficulties) and very quickly proceeded with treatment involving egg donation overseas. The relationship between them broke down during the pregnancy and she kept the baby at birth. The High Court ruled that she had bonded with the baby and that it was in his best interests to remain living with her, notwithstanding the lack of biological connection. The decision was later upheld by the Court of Appeal.
Re H (2017) had remarkably similar facts but the opposite outcome. A same-sex couple had met a surrogate online and conceived H through IVF with donated eggs in Cyprus. The relationship between the married surrogate and the intended fathers broke down during the pregnancy and the surrogate did not hand the baby over at birth. The High Court ruled that care should be transferred to the fathers (on the basis that H was more likely to thrive in their care), and the surrogate was given limited contact six times per year. The decision was published after upheld by the Court of Appeal which affirmed, referring back to Re N (2007) that the only legal principle which applies in such cases is a fact-based assessment of the child's welfare needs.
One of the difficulties associated with cases like this is that, although the court has the power to reassign day-to-day care, it cannot make a parental order reassigning legal parentage without the agreement of all parties. In Re A and B (2016) a surrogate who had fallen out with her parents refused to give consent to the parental order 'out of spite', even though she had no wish to care for the child. The court made clear that, although it could give the parents parental responsibility and make an order that the child lived with them, it could not make a parental order without the surrogate's consent.
If parentage is not fully resolved, questions may arise in relation to financial responsibility. For example if the surrogate retains care of the child, the intended father may be responsible for paying child support (although this will depend on whether he is the legal father - find out more about legal parenthood in surrogacy cases). If the intended parents win care of the child, the surrogate will be responsible for child support. Find out more about financial provision for children.
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