Surrogate mother loses care of child

Children|Family Law|November 21st 2017

A surrogate mother has lost the right to care for a child she gave birth to.

The woman met a gay couple online and entered into a surrogacy agreement with them back in 2015. However, during the pregnancy she and her husband changed their minds about giving up the child, despite neither one of them sharing DNA with the baby.

This unsurprisingly led to a falling out between the two couples. When the child was born last April, with the mother did not inform the gay couple for more than a week. They soon launched legal proceedings to resolve the dispute.

Under English law, the child’s legal parents are the surrogate mother and her husband. Despite one of them being the biological father, the gay couple have no parental rights without a court order.

The gay couple were successful in the High Court, which ruled that they should be the ones who care for the child. However, the surrogate mother was determined to keep the now 18 month-old infant and took her case to the Court of Appeal.

In a judgment published this week, the three Judges who heard the surrogate’s case ruled that the initial High Court decision had been correct. Lord Justice McFarlane said the child’s needs “would be best met by living with a genetic parent”. He also backed the High Court’s assessment of the surrogate mother and her husband, who had “embarked on a deliberate and calculated course of conduct” to prevent the gay couple forming a relationship with the child.

The Court of Appeal upheld the High Court’s declaration that the surrogate couple had “no capacity to resolve disputes or negotiate their way through difficulties”.

Read the full judgment here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Paul Massey says:

    Lord McFarlane is one of the very best judges in the country. However, I am not sure i agree with him. There is a good reason why judges make adoption orders. It’s simply that the adoptive parents are better people than the biological parents. And better individuals means better parents. There is nothing special about genes per se. The test of a good parent is how he or she raises a child not about whether they have brown eyes or can roll their tongues…

    To add a rider, I have learned in the past that it is not a good idea to form a view without having read the full judgement and, indeed, one should really see all of the evidence that a judge has seen before deciding that the judge was wrong. More than this, actually hearing the evidence is better than reading it, as sometimes body language, inflexions and emphasis etc are lost when relying on transcripts.

    Without sounding, and definitely not wanting to be, sycophantic, I have not read anything by Lord McFarlane that one could say is just plain wrong, His judgements are a model for all judges. I just wish the same could be said for judgements from the lower courts, which are a somewhat mixed bag, to put it as kindly as i can…

    • Paul Massey says:

      sorry i meant to make it clear that adoption orders are just an example of how genes are not necessarily determinative of anything very much. I am aware of course that this is a surrogacy case,not an adoption case. But the point remains.

      SO my initial comment should really read “There is a good reason, for example, why judges make adoption orders.

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