Surrogate Mother wins access to Biological Son

A recent case has been heard where a surrogate mother was pursuing contact against her child’s same sex parents through the Courts.

A surrogacy arrangement was entered into between the intended parents who are both male, and the surrogate.  In this case the surrogate was also the egg donor and so was biologically related to the child.  This is known as a straight (or traditional) surrogacy arrangement and one of the intended fathers would have used their own sperm.  Sometimes these sorts of arrangements are dealt with informally and sometimes without the assistance of a fertility clinic or legal advice.

Intended parents often use friends or family members for a straight surrogacy arrangement such as this one.  like this. The issue however is that because an egg donor has not been used and the surrogate therefore has a biological link to the child, then her relationship with the child in the future must be considered even though it was still the case that the intended parents would be the child’s parents. 

Breakdown of the Relationship During Pregnancy

The child was born in September 2020.  Both fathers were friends with the surrogate’s sister The surrogate said during the court case that both intended parents had agreed with her that she would have contact with the child after he or she was born.

Sadly the relationship between the intended parents and the surrogate deteriorated during the pregnancy.  It appears that there were concerns as to whether or not the surrogate would hand over the child to the intended parents after birth but she did so.  She also signed a Parental Order consent form and handed responsibility for the child to the intended parents and then an agreement was reached that she would have regular contact with the child who lived permanently with the intended parents.

Legal Dispute and Court Ruling

However, apparently the intended parents reneged on their agreement leading to an argument which was secretly recorded by the surrogate.  It was for this reason that the surrogate did not feel able to consent to a Parental order being made in favour of the intended parents as this would have extinguished her rights in relation to the child.   Without a parental order, the child’s legal parents were the surrogate and the biological father, leaving the other intended parent with no rights.

The intended parents’ legal team argued that the Court should consider a step-parent adoption order to be made to extinguish the ties between the child and the surrogate and to give the other intended parent legal rights.  This position was supported by the local authority where the child resided however the Courts eventually ruled in favour of the surrogate that she should continue to have a role in the child’s life.

This means that she retains legal parental responsibility for the child alongside the intended parents.  A Child Arrangements Order was granted which sets out that the child will live with the intended parents and spends time with order for the surrogate.

Lessons from the Case: The Importance of Clear Surrogacy Agreements

Most surrogacy arrangements work very successfully but this case provides a clear insight into what could happen when relationships suffer.  The primary concern of the Court when making any Order in respect of a child is the child’s best interests and welfare.  In this case the Judges made it clear that they felt that focus had been taken away from the child and this needed to be maintained and it is important for a child to know how he or she has been brought into the world.  It highlights that a surrogate does have a significant and important role in a child’s life especially when there is a biological link.

It is important when entering into any surrogacy agreement that intended parents and surrogates work well together and really focus on any issues that could arise.  This should set out the expectations of all concerned and consider how they will try to resolve any issues.  It is important for there to be therapeutic input available to everyone and for everyone to understand the legal aspects involved.  Had the intended parents known that they could not just renege on an agreement for contact, then they may have thought differently about the surrogate using her own egg. 

This case also highlights the need for trust between intended parents and surrogates as well as the proper care and attention required in the surrogacy agreement.  Ultimately the welfare of any child is paramount and will always be the sole focus of the Court.  It is quite clear that the Courts do not feel that it is a negative for a child to know their surrogate/ biological mother and that it will not harm the child’s relationship with his/her fathers.

How Pinney Talfourd can help

Pinney Talfourd support both intended parents and surrogates in terms of the legal process. If you are seeking surrogacy legal advice, please feel free to contact our Family team lawyers, Louise Eady or Remyhs Baker.