Surrogacy is an area which continues to attract controversy in the news. Arguably, it is the surrogacy arrangements which ‘go wrong’ that are highlighted in the press, and this may add or reinforce a stigma to the whole concept of surrogacy, to go with the already complex matters surrounding the parents’ rights and responsibilities when entering into surrogacy arrangements. It is, however, important to highlight the legal rights of those involved in order that clients can be properly informed of this potential route to parenthood.
A surrogate will automatically be considered as the legal mother of a child unless – or until – parenthood is transferred to the intended parent(s) through a parental order or adoption order after the birth of the child. This part of the process should not be taken for granted. Once a child is born, the surrogate has no obligation to give him or her up, and the Surrogacy Arrangements Act 1985 clearly states that no surrogacy agreement which may be in place is enforceable by, or against, any of those making it. This means that the surrogate mother is not obliged to hand over the child, and nor are the intended parents obliged to take the child if they have changed their minds.
So, with such risks present, why would parties enter into a surrogacy agreement at all? The answer is that a well-drafted surrogacy agreement, though not legally binding, can ensure that all parties enter into the process with their eyes open, having had full knowledge of the expectations and commitments involved in their particular arrangement. For many, surrogacy offers a chance of parenthood which would otherwise be unavailable, and it can enable the intended parents to be actively involved in the process.
The case of H v S (Surrogacy Agreement)  EWFC 36 highlights the difficulty the court faces when deciding what to do in situations where a surrogacy agreement is unclear or abandoned. In this case, the commissioning parents sought for the child to live with them in line with the parties’ intended agreement; however, the surrogate mother sought an order for the child to remain with her, as she argued that she had entered into an artificial conception agreement with the man which would see her acting as the main parent and carer. This was firmly disputed by the genetic father and his partner, who stated that it was always intended that the mother would merely ‘play a role’, and that they were to be the child’s parents.
It was the function of the court to decide what best served the interests and welfare of the child throughout her childhood. The judge found that the mother had “deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date” and it was decided that the father and his partner were the best parents able to meet the child’s needs now and in the future.
Although the exchange of e-mails between the parties was a basis for such a surrogacy agreement, this in itself was not the backbone to the judge’s decision. Rather, the judge found that the mother had, by all accounts, deliberately and consistently disrupted contact between the child and the applicant parents, as well as using offensive language (including stereotypical portrayals of gay men and homophobic slurs) to describe them. The judge held that the mother had shown herself to be unable to put the child first, and that she was unable to meet the child’s emotional needs, both now and in the long term.
This recent judgment has received much attention from the press and the public as to whether this was the ‘right’ thing to do. Ultimately, surrogacy remains a highly emotive area, and parties who wish to enter into surrogacy agreements are urged to seek legal advice first to ensure that it really is a suitable route for those involved.
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