Judge removes baby from ‘duplicitous’ surrogate mother

Family Law|May 6th 2015

The High Court has ordered the removal of a 15 month-old baby from her mother after she deceived a gay couple into conceiving a child with her.

In H & S (Surrogacy Agreement),the child in question, ‘M’, was born in January last year following an artificial insemination procedure between ‘H’, her father, and her mother ‘S’.

S was a Romanian national and H was also born in Romania, but has a Hungarian background. She is a committed Orthodox Christian while H is in a “long-term committed relationship” with a man called B.

The father is now a naturalised British citizen and he and S have known each other for more than 20 years. They even shared a house at one point.

S was formerly married to a Briton and the two children from that marriage now live with their father in Kent following “protracted proceedings”.

H met B in London and the couple began living together although they have not married or become civil partners. H was keen to start a family and B agreed. S offered to act as a surrogate for the couple but they initially refused, preferring to explore other options.

She repeated her offer the following year, however, and this time the couple agreed.

At the High Court, Ms Justice Russell explained that they had agreed to proceed “on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role.”

S became pregnant but the relationship between her and the couple began to deteriorate. The mother did not inform the couple when the birth drew near and they only found out later that day.

A month after the birth the couple launched court proceedings. A contact agreement was ordered by the family court, allowing H to see the child, but the woman broke this, announcing that she would no longer be making H available for overnight visits. The couple pursued her through the courts. She was awarded ‘exceptional’ legal aid funding, securing a solicitor to represent her.

S kept the girl with her constantly, sleeping in the same bed and carrying her around in a sling, the High Court heard, using these arrangements to prevent the father seeing his daughter. She even arranged unnecessary medical appointments and insisted on court breaks to breastfeed the child while the couple gave evidence. She insisted that she and H had actually entered an agreement without B, in which she would be the main carer of the child.

In court, the mother made a series of wild, homophobic allegations about the couple, alleging, amongst other claims, promiscuity and drug-taking. But she could provide no evidence. She also encouraged her supporters to publicise the case on social media, making further allegations about the couple.

Ms Justice Russell described the mother as “duplicitous and manipulative”. She had, declared the Judge, deceived the couple in order to get pregnant.

“I conclude that she must have either deliberately misled the applicants about her intentions or changed her mind as the pregnancy progressed. On the balance of probabilities … I find that S deliberately misled the applicants in order to conceive a child for herself rather than changing her mind at a later date.”

The woman had had the girl baptised in defiance of a court order, and then attempted to conceal this.

The Judge declared:

“The perceptible ease with which S lied to the court, the defiant way that she has given evidence about the baptism along with the obdurate stance she adopted over the baptism give lie to any suggestion that she is the intimidated martyr to motherhood that she would like to have her supporters believe.”

M should be sent to live with her father and his partner, she ruled, with the mother only allowed occasional supervised contact. The girl was likely to harm if she remained in her mother’s care and receive a distorted, negative view of her father.

The Judge noted the lack of the lack of regulation surrounding surrogacy arrangements in the UK.

“Very sadly this case is another example of how “agreements” between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners.”

Read the judgement here.

Photo by dvs via Flickr

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