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Assisted Reproduction

British High Court Allows Traditional Surrogate To Keep Baby

My colleague, Amy Demma, brought this decision to my attention:

A UK surrogate who changed her mind about handing over a baby to a couple has been allowed to keep the child, the High Court has ruled.

The baby girl born last July, known as T, was said to be ‘thriving in her mother’s care’. In ordering that the child continue to reside with the mother, Mr Justice Baker said that the paramount consideration for the court was the welfare of the child.

Despite the clear evidence of affection towards the child by all parties, the judge had doubts the couple, known as Mr and Mrs W, would meet ‘all of her emotional needs’. He said the couple demonstrated an ‘alarming lack of insight’ over the relationship between the mother and child, and that removing T from her mother would cause the child ’emotional harm’.

The parties, who cannot be named for legal reasons, initially met over the internet in 2009 and entered into an informal arrangement that the mother would act as a surrogate for the couple. The mother became pregnant allegedly through donor insemination using Mr W’s sperm at one of the parties’ own home.

The court heard how under the agreement the couple paid £4,500 to the mother and had also purchased maternity clothes and other items for her. However, during the pregnancy the relationship between the parties deteriorated and the mother changed her mind about giving the child to the couple. Seven days after the child was born Mr W started legal proceedings to request that the court grant an order that T reside with the couple and not with the mother.

The judge considered the risks of surrogacy to be ‘very considerable’, saying: ‘In particular, the natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child’.

At the hearing, the judge questioned the reliability of the evidence given and criticised the behaviour of both parties during the relationship. It was found that Mrs W had been contacted by the mother under a false persona through a surrogacy website, she said, to discover what the couple were planning to do. The judge was also unconvinced that Mr and Mrs W told the court the entire truth on certain matters during the proceedings.

In English law no money or benefits other than those to reimburse reasonable expenses incurred may be paid to a surrogate and negotiating a commercial surrogacy arrangement is a criminal offence. Mr Justice Baker said the ‘internet has facilitated the making of informal surrogacy arrangements between adults’ but that users may not have access to advice, counselling and support offered by surrogacy agencies, who he said must also be careful to act within the law.

In addressing the agreement itself, Justice Baker said: ‘Of course, the unusual feature of this case is that T was conceived as a result of a surrogacy agreement. Plainly that is part of the background to the case, and a relevant characteristic. But in my judgment, the court should not attach undue weight to the fact that the mother originally promised to give up the baby’.

The judge ordered a hearing for next month to review progress and to make any decisions necessary for the child’s ‘long-term future’, including future contact between the child and the father. An interim visiting order is in place until that date.

A few quick observations. First, it is well known that surrogate contracts in the United Kingdom are not enforceable (though it is unclear what type of contract, if any, the parties had). Secondly, this involved a traditional surrogacy arrangement where the surrogate was inseminated with the Intended Father’s sperm. As a result, she was genetically related to the child she delivered thus making the Intended Parents argument even more difficult in an already unfriendly jursidiction. Thirdly, the insemination appeared not to have been done under a physician’s supervision, nor is it clear whether there was any psychological screening performed. From the sparse information released, it appears that the Parties eschewed the normal formalities in order to save money and, not surprisingly, ended badly for everyone.


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