A woman who had commissioned a child with a surrogate mother failed to inform her that the embryo had been fertilised by a different man.
The case concerned a surrogacy agreement formed in Cyprus, initially in 2012. A married couple attempted to commission a child from a surrogate via a clinic on the Mediterranean island but conception was unsuccessful. The couple broke up and divorced.
The women then began another relationship and they decided to pursue surrogate motherhood as well. She returned to Cyprus with her new partner and began a new round of fertilisation at the same clinic, using her ovaries and his sperm. She asked the clinic staff whether she needed to inform the surrogate themselves that she had a new partner but was told there was no need to do so.
This time the procedures worked and the surrogate mother became pregnant. But as the birth approached, around the seventh month, the unnamed woman began to worry about the fact that her previous husband was as the father in the agreement. She was then told that the surrogate mother should, after all, have been informed of her new partner.
When the surrogate mother was told about the situation, she was “very upset and shocked” and initially refused to talk to the commissioning couple. Then she grew concerned that she was carrying a child under the terms of an out-of-date agreement and insisted that a new one be drafted and signed before the birth. The child was duly born in the UK. The commissioning parents then applied for a ‘parental order’, formally transfering the status of parents to them, as required by section 54 of the Human Embryology and Fertilisation Act 2008.
At the High Court, Mrs Justice Theis noted the required consent of the surrogate mother and granted the order. But, she added:
“It was undoubtedly the case that, prior to the embryo transfer, the surrogates should have been informed that there had been a change of genetic material …. The failure to disclose that information had caused the surrogates enormous distress. Nevertheless the surrogates had been clear in their position that they considered that the child had never been theirs ….”
The Judge stressed the lessons to be learned:
“Once again this case highlights the difficulties that can occur in this type of arrangement and the need for there to be complete transparency on both sides prior to any significant steps being taken.”
DM and another v SJ and others can be read in full here.