The High Court case was heard earlier this year but its decision has only just been published.
The decision follows a bitter dispute over the nature of the parents’ agreement when a baby girl was conceived. Whilst the mother argued that they had agreed she would be the main parent, the father argued that she had agreed to be the gay couple’s surrogate.
The Judge, Ms Justice Russell, concluded that “the pregnancy was contrived with the aim of a same sex couple having a child to form a family assisted by a friend” and that the girl was “more likely than not to suffer harm” if she stayed with the mother than with her biological father and his partner. She concluded that the mother had tricked the two men into an informal surrogacy arrangement and then reneged on the agreement.
UK law has no structure around people entering into surrogacy arrangements and whilst the Judgement in this case gave recognition to the original arrangement between the parties it exposes the problems that exist.
Whilst the vast majority of surrogacy arrangements proceed without a hitch, the lack of structure in the UK means that there is always a risk that things could go wrong and disputes will emerge. At present UK law doesn’t adequately safeguard children against such problems and this case has further highlighted the need for reform and the need for all parties to seek legal advice in advance.