The High Court has recently ruled that a baby girl should be removed from her surrogate mother to live with her father and his boyfriend instead. The judgement follows a complex legal battle over surrogacy in the UK, where a lack of regulation means that informal arrangements between parties can quickly disintegrate, leaving the justice system with a plethora of a cases to resolve.
The judge ruled in favour of the two men after it was established that the mother had agreed to be a surrogate before conceiving, and it was decided that living with her father and boyfriend would be in the best interests of the child.
The facts of the case are particularly interesting and highlight the obvious need for clear, comprehensive legal frameworks concerning surrogacy agreements in the UK. Other countries across the world, including the US, have already established a legal process that those involved in surrogacy must undertake. These processes create a clear, legally binding agreement regarding the future of the child and, in some instances, also involve psychological screenings. The system provides much needed certainty for the parties, and ensures that complex and time consuming legal disputes do not occur in the future, protecting the best interests of the child.
The problem in the UK is that any form of commercial surrogacy is not legally recognised. The woman who gives birth is the legal mother and her husband, if married, becomes the legal father. Since such an approach is not currently in place therefore, despite the majority of surrogacy arrangements concluding amicably, the only solution for the parties involved would be to head to the courts if the mother were to change her mind.
Ms Justice Russell said when delivering her judgement: ‘[The girl] was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend; this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore [the girl] living with [the two men] and spending time with [the woman] from time to time fortunately coincides with the reality of her conception and accords with [the girl’s] identity and place within her family.’
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