The recent High Court UK surrogacy case of H v S was shocking for a number of reasons.
The case centred on a dispute between a surrogate mother and the intended parents of her child, a gay couple who had arranged (with the mother) to sign a parental order and assume parental responsibilities once the child reached a certain age. The surrogate mother was originally in full agreement, and had raised no objection to the arrangement before conceiving.
But instead of agreeing to start the process of transferring parental responsibilities once the child reached six weeks of age, as specified by UK law, the surrogate mother reneged on the agreement and claimed sole responsibility for the child, completely ignoring the views and wishes of the intended parents in matters concerning the child’s naming and early upbringing.
The conduct of the surrogate mother, and the fact that the intended parents had such little protection from UK legislation, is shocking. The result of the case is reassuring to some extent – the intended parents were granted custody of the child following evidence about the mother’s conduct after the child’s birth. But more must be done to protect intended parents against this kind of deception.
Based on the conduct of the surrogate mother, the Judge ruled that it was in the child’s best interests to reside with her intended parents. The justification for this was based on the mother’s behaviour following the child’s birth. She made ‘wholly unsupported’ allegations about the intended parents’ alleged drug-taking and sexual conduct, and behaved in a homophobic and offensive manner simply because the intended parents are a gay couple.
Used the surrogacy agreement to deceive intended parents
She was also found to have continually disrupted the child’s contact with the intended parents (which had been granted by a court order) in her pursuit of keeping the child for herself. This sort of behaviour convinced the Judge that she had used the surrogacy agreement to deceive the intended parents into helping her to have a child for herself, and he ruled that it was in the child’s best interests for her to reside with the intended parents.
But if the surrogate mother had not behaved in such an outrageous way, the intended parents would have had no legal grounds to dispute her claim to bring up the child as her own. UK law states that the birth mother – even if she is carrying a child conceived with donor eggs and is not technically the child’s biological mother – has full custody rights over a child until a parental order can be filed six weeks after the child’s birth.
Up until this point the intended parents have no legal rights over the child’s welfare. If the relationship between the intended parents and the surrogate is still good, and the agreement is still in place, a parental court order can be applied for in order to transfer all responsibility for the child over to the intended parents. This only applies when one or both of the intended parents have a genetic link to the child. If neither of the intended parents has donated sperm or eggs as part of the conception process, their only option is to officially adopt the child. If the intended parent is single they do not have the option to apply for a parental order – their only available option is adoption.
Partner of a surrogate may withdraw consent
That would seem reasonable if it were not for the fact that the husband of the surrogate is considered to be the child’s legal ‘father’ until a parental order or adoption is arranged. This means that the husband of a surrogate, and the surrogate herself, could have no genetic link to a child but could still be considered its legal parents. The donors of the sperm and egg used during the child’s conception, on the other hand, would have no legal rights over the child whatsoever. However, some progress has been made with regard to legal parenthood at the time of birth of the child. Since October 2013, the partner of a surrogate may sign a Withdraw Consent form which withdraws consent to being the nominated legal parent of any child born as a result of the surrogacy treatment.
This confusing, unfair jumble of responsibilities is in stark contrast to the Californian system, which allows surrogate mothers and intended parents to sign an official pre-birth agreement once all parties have received the necessary psychological screening and legal and medical advice. Setting surrogacy agreements in stone in this way would help to protect intended parents against surrogates who have a change of heart or are intending to deceive from the outset.
That’s not to say that surrogate parents should be completely excluded from the child’s future upbringing. Most intended parents would probably welcome continued contact with the surrogates as the child grows older, as the gay couple in this particular case did.
It’s clear that UK surrogacy laws need to undergo a number of substantial changes in order to protect families, couples and individuals from suffering the sort of heartache and uncertainty that the intended parents in H v S experienced. Instead of maintaining outdated laws that prevent people from advertising or arranging surrogacy agreements, Parliament should be protecting all involved parties by setting out a legal framework to agree to before conception has even taken place.
As one of the UK leaders in surrogacy treatment and services, Herts & Essex Fertility Centre fully supports the work of organisations such as Gay Birthright UK, who are petitioning Parliament to reform the UK’s outdated surrogacy laws.
To find out more about them and their work, visit http://www.gaybirthrightuk.com/
If you would like to talk over the implications, legal and treatment-related, of choosing surrogacy for your future child, please do call us on 01992 78 50 60 or email Sarah.Templeman@hertsandessexfertility.com