Surrogacy: A Modern Trend Struggling with Outdated Laws

• Posted onJune 2, 2017

Surrogacy is quickly becoming established as one of the first options for couples who are not able to conceive or carry a child themselves. In reality, it still makes up a very small number of births in the UK. But this number is growing and, with celebrities like Sarah Jessica Parker, Nicole Kidman and Elton John having children this way, it would seem likely that the trend will continue.

Unfortunately, most of the UK’s laws on surrogacy were written almost 30 years ago; long before surrogacy had really been tried and tested. So, the courts have been left grappling with out-of-date laws in extremely difficult situations. Tensions can run very high and parents are, understandably, hugely emotionally invested, whilst children are stuck in the middle. All of them relying on a court to make the ‘right’ decision.

The latest published court judgment involved four people: the birth mother (who was not the genetic mother), the birth mother’s partner, the father and the father’s civil partner. The father and his civil partner had previously had twins through surrogacy. They decided to have a further child using the same egg donor. Their relationship with the surrogate who had given birth to their elder twins had broken down so they decided to find a new surrogate. They met the birth mother online and they then entered into an agreement together. This agreement cannot be legally binding under English law.

During the pregnancy it seems that two key things happened: firstly, the birth mother said that she decided that she did not want to give the child to the father and his partner because of how she said they treated her; secondly, the birth mother lied to the father and his partner and told them that she had miscarried both of the twins she was carrying. In fact, she had actually miscarried one, but was still pregnant with the other.

Shortly before the child was born, the birth mother’s partner told the father and his partner that the birth mother was actually still pregnant with their child. The father and his partner issued court proceedings saying that the birth mother had been “deceiving” and “calculating” and it was not in the child’s best interests to live with her.

There are a few important points here. Under English law:

• The birth mother is considered to be the legal mother even though she is not genetically related to the child.
• The birth mother’s partner would automatically have become the child’s legal father if they had been married. As they were not, he did not have any legal status relating to the child.
• The birth mother’s consent is required before the court can make a Parental Order. A Parental Order would have transferred the legal parenthood of the child from the birth mother (and her partner, if they had been married) to the father and his partner.

As the birth mother did not consent, the court could not make a Parental Order. So, instead, the court has to consider who the child should live with based on what is in the child’s best interests.

The first court decided that:

• the child should live with the birth mother
• the child should spend time with the father and his partner every two months
• the birth mother’s partner should be given Parental Responsibility for the child as he will be living with the child and will take an active role in parenting him day-to-day
• the father should be given Parental Responsibility for the child as he is the biological father
• the father’s partner should not be given Parental Responsibility for the child as the role he will play in the child’s life was not considered to be as significant as the role that the birth mother’s partner would play.

This was appealed.

On appeal, the Court of Appeal did grant the father’s partner Parental Responsibility, making it clear that he definitely should have it as well as everyone else.

However, the Court of Appeal did not change who the child was to live with. Importantly for future cases, the court said that “the genetic tie [to the father] was a factor to be balanced against the others in the decision making process but not a trump card”. What was in the child’s best interests was the important consideration; biology alone was not.

In essence, what won out for the birth mother was that the court thought she would be better at meeting the child’s emotional needs. Partly because her home had more “warmth”, but mostly because she seemed to be very supportive of the child’s relationship with the father and his partner, whereas they did not seem very supportive of the child’s relationship with her. The court was concerned that, if the child lived with the father and his partner, the child’s relationship with the birth mother would probably be damaged.

This is controversial. Some may argue that, as the birth mother has no genetic link to the child, the child’s relationship with her cannot be more important than the child’s relationship with its father and siblings. Others may say that, because the child had been living with her for the first twenty months of its life, maintaining the bond it has with her is more important than the child getting to actually live with a genetic parent.

Whichever camp you fall in to, surrogacy law is certainly complicated and tricky to navigate. If you are considering surrogacy, you can contact our expert solicitors today.

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