High Court ruled in favour of the two men after finding that the mother had agreed to be a surrogate before conceiving and deciding it was in the best interests of the girl that she grew up with her father and his partner. “[The girl] was not conceived by two people in a sexual relationship,” said the judge. “The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend; this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place”.
According to UK law, the woman who gives birth is the legal mother and her husband, if she is married, usually becomes the legal father, even if donor eggs and sperm are used. To gain legal parenthood of a child born to a surrogate, the commissioning couple must apply to the courts for a parental order within six months of the birth. For this to be granted they must meet a set of criteria, foremost among which is the consent of the woman who gave birth to the child. Even then, the court retains the discretion as to whether or not to make the order, based on whether it is in the child’s interests. Any surrogacy agreement made between them beforehand is not legally enforceable, but can be taken in evidence by a judge.
The case has thrown open the debate around surrogacy in the UK, where a lack of regulation means that informal arrangements between parties can easily fall apart, leaving courts with complicated and highly emotive situations to resolve. According to Cara Nuttall, family law specialist, the current legal situation is “a bit of a mess”, adding that lack of clarity means often people enter into surrogacy arrangements unaware of the legal implications.
Peter Morris, family law specialist, says: “A number of countries including the US have a proper process that those involved in surrogacy must undertake. Such systems would see all of those involved make a clear agreement regarding the future of the child. The process is legally regulated which provides greater certainty for the surrogate, the intended parents and ultimately the child. The UK, however, does not have such an approach in place, meaning that although the vast majority of surrogacy arrangements conclude amicably, if a surrogate mother was to change her mind the only recourse for the other parties involved would be to head to the courts. The key issue raised by this case is that the UK lacks a clear, comprehensive legal framework to cover the concept of surrogacy”.