UK Court of Appeal rules that baby should live with surrogate after ‘Facebook’ arrangement ends in dispute

April 7, 2017
The UK Court of Appeal has dismissed an appeal by a same-sex couple against a High Court ruling last year that their gestational surrogate could keep the baby she carried for them.

The couple met the surrogate on a Facebook group and, after a brief meeting at Burger King, flew her to Cyprus for embryo transfer using eggs from a donor and one of the fathers’ sperm. During the pregnancy the relationship between the adults broke down, with the surrogate feeling that the couple’s treatment of her was ‘unsympathetic, demeaning and demanding’. When she did not relinquish the baby at birth, the couple applied to court for an order that he should live with them.

In the High Court, the judge heard evidence from all parties, as well as a psychologist and the guardian appointed to represent the child. The judge concluded that the surrogate was better able to meet the child’s long term emotional needs than the fathers. She was providing a warm and loving home and, crucially, was better able to put his needs first, with an inclusive attitude to involving the fathers. By contrast, the fathers were hostile to the surrogate and could not contemplate her having any ongoing role. The judge ruled that the child should live with the surrogate and her partner, and that the fathers should have contact one weekend every eight weeks.

The fathers appealed against that decision, saying that the boy should live with them. On their behalf, Elizabeth Isaacs QC said the judge had not conducted a proper balancing exercise in determining the child’s welfare interests, and in particular had not given enough weight to the child’s biological tie with the father and his other siblings.

Yesterday, the Court of Appeal rejected the appeal, ruling that Ms Justice Russell had carefully considered the welfare issues (including the biological ties, which were relevant but not a ‘trump card’) and properly made a decision which was in the child’s best interests.

What is the significance of the case?

Under UK law surrogacy agreements are not contractually enforceable, and the surrogate is the legal mother until the family court makes a post birth parental order transferring legal parenthood to the intended parents. However, a parental order cannot be made if there is a dispute and the Family Court must then decide who the child should live with. The issue before the court in any disputed UK surrogacy case is not what rights the adults have, but what is best for the child.

There have in practice been only a tiny number of disputed UK surrogacy cases, and the outcomes have varied, with care being awarded to the surrogate in some cases and to the intended parents in others. A key consideration is often which potential parents are best able to set aside the adult differences to promote a positive sense of identity for the child which accommodates everyone involved in their conception.

The decision in this case was therefore fact-specific and does not create any new legal principles. But it may well catch headlines because it embodies common fears about surrogacy: that surrogacy arrangements frequently result in children being the subject of bitter legal disputes at birth, and for intended parents that a surrogate will be allowed to keep their baby.

But it is important to pause and look at the case properly. If you read the judgment, it is obvious that this arrangement was badly managed, and the lack of care and respect between the adults was always going to create problems. It is also important to remember that cases like this are – thankfully – very rare, with more than 99% of UK surrogacy cases resulting in the making of parental orders with the full consent of all involved.  This is only the fourth UK surrogacy to involve a dispute, as against well over a thousand successful arrangements.

The key to successful surrogacy is building strong foundations. Whether that is done through a surrogacy agency or organisation (which give third party support and additional protections) or just by taking proper care to work things through in an independent surrogacy arrangement, disputes are avoided where intended parents and surrogates set things up properly. With surrogacy here to stay, UK law needs to encourage well-managed surrogacy more effectively. Currently there is no guidance or formal process whatsoever which the law requires people to follow at the start of a UK surrogacy arrangement, no issues which have to be considered or recorded in writing, no checks and balances; the law creates a complete vacuum of legal process until after a child is born. In this context, it is not astonishing that sometimes problems arise.

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