Child Removed From Surrogate Mother

There have been a number of news publications reporting this week on a High Court case involving a child being removed from her surrogate mother to be raised by a gay couple.  The Judge was required to determine the nature of an agreement reached between the parents when the child was conceived.  The Judge found that the mother had in the first instance agreed to act as a surrogate on the basis that the child would grow up with her father and his partner.  The mother however claimed that it had always been intended that she would be the main parent. The natural father however disputed this saying that the plan had been that he and his partner would raise the child but that the mother would have a role in the child’s life.

The Judge was confident that the original agreement had been a surrogacy arrangement and stated “”The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend. Therefore [the girl] living with [the two men] and spending time with [the woman] from time to time fortunately coincides with the reality of her conception and accords with [the girl’s] identity and place within her family”.

This case has opened up the debate on whether there should be stricter rules in place for surrogacy arrangements in the UK. Family Lawyers recognise that it is often tempting for couples to use someone they know as a surrogate and to have a very loose, informal agreement as to the arrangements.  It can often be the case that a family member becomes the surrogate mother which can make the entire situation quite complex to deal with.  It is important to consider the fact that both “parents” need to become the child’s legal parent and the intended parents must apply to court for Parental Order within a strict timescale.  The birth mother is required to consent to the court making the Order.  This can on occasions provide the birth mother with time to have a change of heart about the intended arrangements.  Even if the birth mother agrees, there is still the option for the Court to refuse to make the Order on the basis of what is in the child’s best interests.

In the UK the legal mother is automatically the woman who has given birth to the children.  Furthermore, if that surrogate mother is married then her husband is automatically the legal father.  This is the case irrespective of whether either of them are the genetic parent.  The current legal situation is far from satisfactory and is not helped by the extremely emotive nature of the cases.  Other countries, for example, the United States have a very clear regulated framework in place which provides greater security for the intended parents.

There would clearly be benefits to such a system being implemented in the UK to provide a clearer structure for anyone considering surrogacy.  Until there is however, it remains vitally important that all of the options and potential challenges are fully considered by both the intended surrogate mother and the overall intended parents before a child is conceived.

For advice on surrogacy arrangements contact a member of our family team on 0800 387 747.