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Thursday, May 14, 2015


The legal ‘ins and outs’ of gay surrogacy arrangements drew attention this week after a gay couple won custody of a baby girl following a high court legal battle with the child’s mother.

At the centre of the case was the woman’s claim that the gay couple had agreed for her to be the main parent, while the couple – one of whom had donated sperm – said she had agreed to be their surrogate.

This case highlights the risks when unwary individuals enter into informal surrogacy arrangements, rather than taking specialist legal advice, as such situations can be extremely complicated and highly emotive situations to resolve.

The judge ruled in favour of the two men, by deciding that it was in the best interests of the girl that she grew up with her father and his partner. However, for it to get to this stage – when the gay couple must have felt very out of control – must have been very unnerving.
The mother’s position was that the father simply acted as a sperm donor, that his partner had no role to play in the child’s life, and that she and the father would undertake roles akin to those of separated parents. Based on this, she tried to persuade the court that her daughter should continue to live with her.

When the case was rejected by the High Court, the comments by the judge, Justice Russell, attracted additional publicity as she said that the mother had used offensive and homophobic language concerning the father and his partner, suggesting ‘they have an open relationship, what gay people call it, have sex in groups’.

Having heard all of the evidence, Justice Russell concluded that while removing a young child from her mother is a difficult decision and is one which she said she made with regret, it was clear that it was the father rather than the mother who was best able to meet the baby’s needs.

The father and his partner must be relieved at the outcome to the case, but they will have suffered appalling stress, as well as significant legal fees, in seeking to secure a role in this little girl’s life that they thought had been agreed before conception.
Unfortunately, the legal framework for surrogacy arrangements differs from country to country, and it is crucial that anyone considering a surrogacy arrangement takes specialist legal advice both in the country where the surrogate mother lives and in the country in which it is proposed that the child will live.

In this case, the father could have tried to avoid litigation by securing a written agreement from the mother at the outset, setting out the terms of the arrangement and providing a very clear legal framework, including confirmation of where the child is to live. This would ensure that, following the birth, the surrogate mother would have already provided the necessary written consent to enable a parental order to be obtained – which grants legal parenthood and parental responsibility.

Under UK law, until such an order is made, it doesn’t matter whether the surrogate mother is the biological mother or not, she (and potentially her husband if she is married), will be treated as the legal parent until a court order is secured.

If the biological father had secured a written agreement, then six weeks after the birth the surrogate mother would once again have been asked to confirm her consent, and at that point he and his partner could have made application to the court for a parental order. In the UK a father in this position is still vulnerable to the surrogate mother withholding her consent, which is why many couples enter into surrogacy agreements in other jurisdictions – for example California, where there is better protection.

The background to the case and the poor conduct of the mother as described in the judgment suggests that she would never have agreed to sign a consent document, and in all likelihood the father and his partner would have needed to find an alternative surrogate. At least in those circumstances, the heartache surrounding this little girl’s first 12 months of life would have been avoided.

It is recommended that any gay couples who are looking into surrogacy should seek legal advice.


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