Informal Surrogacy Agreement Sparked Legal Chaos

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In a case which serves as a dire warning to would-be parents desperate for a child, a couple’s informal private surrogacy arrangement with a family friend led to an outbreak of legal chaos and a three-year-old boy effectively having two mothers.

Unable to have children of her own, a woman had reached an agreement with a close friend who was ‘artificially inseminated at home’ with her husband’s sperm. The names of the father and the surrogate mother appeared on the boy’s birth certificate and, within months of the delivery, the couple’s relationship had broken down.

When the surrogate mother booked into hospital for ante-natal care, doctors insisted on seeing a formal surrogacy agreement and the couple went to solicitors – who the High Court found committed a criminal offence when they charged for drafting one in breach of Section 2 of Surrogacy Arrangements Act 1985.

The litany of legal errors continued as the couple delayed beyond a six-month time limit before seeking formal recognition of the woman’s parenthood. That time limit was mandatory and the Court noted that making a parental order in the woman’s favour was therefore ‘not an option’.

Allowing her to adopt the child was also no solution and the woman had been left in a position of acute vulnerability, with no legal rights over the boy she considered to be her son although he was not a blood relative. Social workers and lawyers had since ‘worked hard to find some sort of solution’ to the problem.

The ex-couple, since divorced, had for a long time engaged in bitter recriminations and had shown ‘a complete inability to pull together for the sake of this much wanted child’. However, they had finally been able to set aside their grievances and put in place sensible and practical shared care arrangements.

Whilst the woman could never become the boy’s legal mother, the Court noted that there were steps that could be taken to ‘provide her with security and recognition of her status’. The surrogate mother, still a close friend, had parental responsibility for the boy and saw him regularly but there was ‘no immediate reason to believe’ that she would use her power over the child inappropriately.

The Court directed that the boy should remain a ward of court and made a shared residence order in favour of the former couple, effectively granting the woman parental responsibility for the child. The surrogate mother was barred from exercising her parental rights without permission from the courts.

Although there was nothing more that could be done to regularise the woman’s position, the Court expressed the hope that the arrangements put in place would be sufficient to enable the boy to ‘look forward to a secure and happy future with his care being shared between the two people he does and will continue to regard as his parents’. Describing the case as a ‘cautionary tale’, the Court underlined the ‘real dangers’ of informal surrogacy agreements and urged couples to use licensed and regulated fertility clinics if they need help to achieve parenthood.