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Judge orders surrogate mother to give baby to intended parents

13th December 2017

This is a very important decision by the Court of Appeal in a surrogacy case. The decision emphasises the welfare principal, the wellbeing of a child being the paramount consideration, and should also give some substantial encouragement to parents, both heterosexual and same sex, who wish to embark upon a surrogacy arrangement.

In this case, the surrogate mother and her husband had entered a surrogacy agreement with a male couple. One of the male couple was the child’s biological father.  A donor egg was employed. The procedure was successful, and the surrogate mother fell pregnant. The relationship between the surrogate mother and her husband, and the same sex male couple, broke down when the surrogate was seven months pregnant. The surrogate couple decided that they wished to keep the child. At the birth, the surrogate couple registered the child with their own choice of name. The male couple, the intended parents, commenced proceedings. At an interim hearing, an Order was made giving the male couple Parental Responsibility and directing that the baby was to live with them for part of the time. At the final Hearing, the Judge took a conventional approach, based upon the paramountcy of the welfare of the child, in the context of an “unconventional structure”.  The Judge (Mrs Justice Theis) concluded that the child’s welfare would best be met by the male couple and that the child should live with them full time. The Judge criticised the surrogate couple’s conduct during the late stages of pregnancy, and post birth, and considered that they had deliberately hindered the male couple’s efforts to establish a relationship with the child, despite previous agreement. She concluded that the male couple would promote the child’s relationship with the surrogate couple, and ordered contact six times per year.

On appeal, the surrogate couple submitted that the Judge had made a Parental Order “in all but name” and should have provided the child with two homes, and four parents. They considered the Judges criticism of them as unjustified and contended that the Judge had seen the case as “surrogacy gone wrong” rather than a case to be approached on normal principles.

The Appeal was subsequently dismissed by the Court of Appeal.

The Judge’s Order did not make a Parental Order. This left the surrogate with certain rights and would provide for ongoing contact.  The Judge expressed a hope that each of the four adults involved would recognise their roles and contribute to the child’s future.

The Judge decided that it was not in the child’s interest to have two homes and four parents.

The Judge made her decision based upon a conventional Child Welfare approach, the interests of the child being paramount, in an unconventional family structure.  The Judge did not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures.  The law did not allow this.  The case was decided upon simple, straightforward application of the paramountcy of the interests of the child. What other approach could possibly be adopted?

A very sound decision based upon the paramountcy of the welfare of the child, and which should give confidence to any person seeking parenthood through a surrogacy arrangement.

Please contact a member of our expert team on 0131 226 6541 or 0141 332 5666 for advice on surrogacy matters.

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Divorce & Family Law Specialist Scotland- Alasdair Docwra

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