These types of cases rarely come to court as the UK law provides no protection to any person entering into a surrogacy agreement and the parties are usually at the outset very aware of the lack of legal regulation.
It is only when a child is born in a surrogacy situation and there is a dispute that the court may become involved. The dispute will be dealt with as all other matters relating to children are in that the court will assess what is in the best interests of the child and make a determination accordingly.
Entering into a surrogacy agreement provides no guarantee for either party if things go wrong and therefore the most important advice we lawyers can give is that disputes should be avoided at all costs. Of course this is easier said than done, however there does remain a number of successful surrogacy arrangements in the UK each year.
The case that was recently before the courts involved a surrogacy agreement between a young and vulnerable woman and a male same sex couple who had met via a Facebook forum. This particular arrangement began to show cracks in the early stages. The couple were judged to have been dismissive of the surrogate’s feelings and had viewed her as no more than a service provider. When the child was born the surrogate refused to consent to the couple having the required parental order made in their favour and for the child to live with them. The Judge even considered that the surrogate may have never really fully understood the process. The Judge therefore had the difficult task of deciding who this child should live with; the surrogate woman, who was not the biological mother of the child, or the couple - one of whom was the biological father.
The Judge determined that the child should remain living with the surrogate mother as she was best placed to meet the child’s emotional needs. The Judge was critical of the couple and found that they were unable to accept the bond that the child had made with the surrogate mother and expressed his concern that if the child was to be placed in their care they would not allow the relationship between the child and the surrogate to continue. He therefore ordered that the child should remain living with the surrogate mother and spend time with the couple just one weekend in eight.