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Surrogacy Laws – Surrogacy to make no alteration to the best interests of a child.


I was really interested to hear in the news today that a High Court Judge has ruled that a baby girl should be removed from her birth mother to live with her father and gay partner and in doing so ensure that the baby’s best interests remain paramount.

The birth mother and father have been involved in protracted legal proceedings regarding the agreement which, they say, was in place between them for the baby’s future care. The birth mother argued that it was agreed that she would be the main parent, whilst the father, who donated the sperm, said that the birth mother had agreed to be the gay couple's surrogate.

Ms Justice Russell in her judgement said that "The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend,” and that it was in the “best interest” of the now 1 year old baby girl to live with her father. The Judge went on to say that “Therefore [the girl] living with [the two men] and spending time with [the mother] from time to time fortunately coincides with the reality of her conception and accords with [the girl's] identity and place within her family." Ms Justice Russell also said that “On the balance of probabilities … I find that [the mother] deliberately misled the [two men] in order to conceive a child for herself rather than changing her mind at a later date.” She went on to say: “[mother] has sought to present herself throughout the proceedings as a victim and someone whose ‘rights’ as a mother and as a woman have been trampled over and abused.

I have previously blogged on the topic of surrogacy laws and how this is rapidly becoming one of the largest developing areas of family law in the UK with over 12 reported cases in the past 2 years. Currently under English surrogacy laws, the legal mother of a child born through surrogacy is always, at birth, the surrogate mother. This is simply because the law says that the woman who carries the child is the legal mother. If the surrogate is married, and the child is conceived artificially through IVF or artificial insemination at home, the legal father at birth is usually the surrogate’s husband. The situation is also the same for surrogate mothers who are in gay relationships. If they are in a civil partnership at the time she conceives, failing any legal intervention, her same sex partner will be the child’s second parent to the exclusion of any future intended parent.

It is evident from this most recent case before the High Court that the parties to the dispute were not clear from the outset as to the arrangements between them.  This would have ensured transparency and clarity for all concerned. Unfortunately, this uncertainty is encouraged by our current surrogacy laws whereby many  are faced with stringent legal restrictions and provisions which are in desperate need of an overhaul to bring them in line with other countries.  

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