Surrogacy case comes to a ‘juddering halt’

Family Law|October 31st 2016

A family court has been forced to adjourn a parental order application made by a parents of two surrogate children.

The case concerned a couple, referred in rulings to as ‘C’ and ‘D, who are the biological parents of twins ‘A’ and ‘B’. They have looked after the children since the day after they were born last year.

C and D had entered a surrogacy arrangement made with another couple –  ‘E’ and ‘F’. In the Family Court sitting at Canterbury, Mrs Justice Theis described the agreement as a “consensual altruistic surrogacy arrangement”. Commercially-motivated surrogacy is not legal in the UK.

A fertilised embryo produced by the couple was implanted in the surrogate mother. Under English law, surrogates remain the legal parents of any children conceived until the status of parent is transferred via a parental order. However, section 54 of the Human Fertilisation and Embryology Act (HFEA) requires the surrogate and her husband if she is married, to consent to the transfer. They must have:

“…freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.”

In this case the surrogate mother and her husband had both made it clear that they did not wish to play any role in the twins’ lives but they also refused to consent to the parental order. The Judge explained:

“What is perhaps so unusual about this case is, as set out above, the respondents wish to take no part in the children’s lives. Their rationale for refusing their consent is due to their own feelings of injustice, rather than what is in the children’s best interests.”

Their refusal to give consent meant, said the Judge, that the parental order application had to come “to a juddering halt, to the very great distress of the applicants.”

As a result the twins had been left in limbo, she continued. The surrogate mother and her husband remain their legal parents despite the fact that they are not related and want no parental role. The couple who look after them meanwhile, are their “psychological and biological” parents only.

Mrs Justice Theis said:

“Even though the children’s lifelong welfare needs require a parental order to be made, which would secure their legal relationship with the applicants in a lifelong way and extinguish the respondents legal status with the children, under the provisions of s 54 (6) HFEA 2008 if the respondent’s consent is not forthcoming the court cannot make a parental order.”

The relationship between the surrogate mother, then 51, and the commissioning couple had broken down during the course of the pregnancy. Doctors had raised concerns – late resolved – about her health if the pregnancy continued and E, the birth mother, now believed that “the applicants did not show sufficient concern for her wellbeing during this period.”

The commissioning couple admitted that “the situation could have been handled better by them.”

As a result of the impasse, C and D applied for an adjournment in the parental order application and E and F raised no objection to this.

Mrs Justice Theis said:

“In the very unusual circumstances of this case, I am prepared to accede to the request for the applications for a parental order to be adjourned generally, with liberty to restore before me, if available. To do otherwise may prejudice the applicant’s ability to commence a fresh application for a parental order to secure their legal status with the children in the future.”

She noted that the Law Commission recently raised the possibility of reviewing current surrogacy law with a view to possible reform.

Science does not always move in tandem with the law. Law makers may feel they’ve gone far enough on a particular issue, but science and indeed human beings themselves will always prove them wrong sooner or later and highlight clear gaps in the law that need to be plugged.

In law the biological parents of a child are not necessarily its legal parents. That may seem odd to you or I but it is settled law that the mother who gives birth to the child is the legal parent,  even if the child is not biologically related to her. The concept of a parental order was introduced specifically for surrogates as a more meaningful approach than ‘adoption’, given the requirement that at least one of those seeking such an order is indeed the biological parent of the child. But they still require the consent of the legal parent, no doubt in order to recognise the role that the birth mother had played by doing all the hard work of bringing the child into the world in the first place. Lady Hale has been particularly articulate about the overriding role of the legal mother who gives birth. In the leading case of Re G she said:-

“The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the egg is not: 1990 Act, s 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.”

But is she right?

Here we have a situation in which the legal mother isn’t being a mother at all. She has completely abrogated her responsibility as a mother out of what seems to be a wish for revenge because of the natural parents perceived lack of care for her during a pregnancy at the advanced age of 51. She therefore won’t agree to a parental order in favour of the biological parents with whom the children are living. There is nothing they can do. They could but won’t adopt their own children so they and the children are in legal limbo unless the surrogate parents change their mind or the law changes – and hopefully, with the Law Commission looking at potential projects, it eventually will.

Should a woman of 51 have ever been considered suitable for surrogacy? I personally don’t think so. But she did it and carried two very much longed for and precious children to term. To have done what she did is worthy of a medal. But could any parents desperate for their own children ever put their interests first so completely?

If there hadn’t been quite so much emphasis placed on the birth parent in law, this situation would never have arisen. A child’s legal parent quite simply has to be the one who always places the best interests of the child before their own, and it does not matter a jot whether that parent provided the gametes, gave birth or had no such connection at all.

It is now time to reconsider the priority given in law to the gestational parent.

Read the judgement here.

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  1. Norah says:

    Surrogacy is so popular now. I was diagnosed infertility many years ago. It was horrible for me. I couldn`t imagine my life without children. I thought about adoption. But for me it`s not the best variant. I can`t live with a stranger in my house. It`s rather difficult for me. I decided on surrogacy. Ukraine seemed to be the best variant for me. Moreover, the price they offered (30000 euros). I decided to risk. And I do not regret. They provide wonderful service for such money. Their surrogate mother gave birth to my son. I`m so happy. And I would like to recommend Ukraine for other couples, who faced the same problem.

  2. Douglas Milnes says:

    A fascinating case, with legal and moral ramifications flying in all directions.

    I found this wording to be odd: “There is nothing they can do. They could but won’t adopt their own children…” If adoption is something they can do, then it is incorrect to say there is nothing they can do. I understand – as an adoptive parent myself – the reluctance to adopt but it is a legal path open to them.

    The anomalous and derisory rulings made regularly in family court on the basis of “the best interests of the child” are well documented by fathers groups and by those seeking reform of the child welfare system. This specific case would be well satisfied by an appeal to such vague and arguable standards, but most cases based on that standard remove the real decision making from a judge, since she or he can only make a ruling based upon someone else’s judgement. The judgement that a Family Court judge must effectively pass control over to, is often made with very little real contact with parent or child and is therefore swayed too heavily by preconception and a reliance on personal (political) viewpoints.

    Obviously, as an adoptive parent myself, I completely agree that a legal parent should not necessarily be the person who provides the gametes. However, until there are reliable and scientific metrics drawn up to determine what are the best interests of a child – which is a huge discussion by itself on ethics, education, morals, law, culture and the meaning of life – then the more that law and regulation can define, the better.

    And I say that as someone who typically argues for less rules and regulation of our private life, not more.

  3. Jo Parry says:

    Firstly, the surrogate was clearly NOT too old and if any surrogate is healthy and fertile, I see no reason to judge her decision based upon her age.

    Secondly, this is an extremely sad situation and all parties deserve support. I think the surrogate should put her feelings to one side and remember the real reason she offered to help the couple in the first place. The only people being punished are the children who are not the legal children of their own parents. They will never have the pleasure of a relationship with the surrogate and her family and this is desperately sad for a whole raft of other reasons.

    Lastly, please remember most surrogate babies have the most amazing relationships with both their “real” parents as well as their surrogate and her family. These children start life with the certain knowledge they are hugely loved and wanted by MANY people….. And yes both my daughters were born though two seperate and hugely successful surrogate pregnancies. They adore their surrogate siblings and genuinely love spending time with both families

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