In the case of Re M  EWCA Civ 228 the Court of Appeal has upheld a decision granting care of a child, born through surrogacy, to the surrogate mother.
The intended parents had appealed the decision of Mrs Justice Russell in June 2016, who had ordered the child to live with the surrogate and her partner and spend time with his biological father once every 8 weeks.
The intended parents had met the surrogate on a Facebook group. There had been a brief meeting after which they had flown the surrogate to Cyprus for embryo transfer. The embryo used a donor egg and sperm from one of the intended fathers.
As the pregnancy progressed, the relationship between the surrogate and the intended fathers broke down completely, which lead to the surrogate refusing to hand over the baby after birth or consent to a Parental Order.
It was felt that on the facts of this case the child needed to have both the surrogate and the intended parents in his life. It was felt that the surrogate was better able to meet the child’s long term needs, as she was providing a warm loving home and crucially she was able to put the child’s needs first. The fathers on the other hand were hostile towards the surrogate and did not want her to have any ongoing role.
The intended fathers felt that the Judge had not given enough weight to the biological tie, but on appeal it was found that proper attention had been paid to the child’s genetic link with his biological father and twin siblings. Biology was not a trump card; welfare was the paramount consideration.
This case clearly demonstrates the complex issues involved when surrogacy arrangements fall into dispute. However, I am pleased to say that there have only ever been a very small number, less than 5, disputed reported cases. It certainly is not the norm and the outcomes have been varied. The welfare of the child is paramount and this encompasses what is best to meet the child’s physical and emotional needs. It would seem that the courts are looking for who can best put aside their adult differences to promote a positive sense of identity for the child. This sense of identity may involve everyone involved in the conception.
In this case the surrogacy arrangement was badly managed from the very beginning. Careful consideration is needed at the very start and overlooking the legal issues may undermine the desired legal status.
If you are considering a surrogacy arrangement then please contact us to discuss your situation.