The case of Re H v S (surrogacy agreement) 2015 has recently been in the news. This is a sad example of our informal framework for surrogacies breaking down.
The little girl at the centre of this case was born in January 2014. The adults in the case are the child’s biological mother known as ‘S’ and then a homosexual couple known as H and B. The parties’ positions on how S was conceived are completely polarised:
S stated that she wanted a baby, and she knew a gay man, H who would provide her with the genetic material to have a baby, and that when she had that baby, she would be the only carer for that child.
H and B said they wished to have a child and reached an agreement with S that H would artificially inseminate S, and that after the birth, H and B would care for the baby together, but that S would play an active role in the child's life.
Proceedings for the child were commenced by H and B when it became apparent to them that S was not going to stick to the agreement they thought they had reached. Media attention was quickly drawn to this case with a Tweet being sent tagging an ITN reporter.
S made a number of arguments that she was breastfeeding the little girl and ‘co-slept’ with her which had led a strong bond and relationship which would be damaging to break.
S muddied the water with H and B by making a lot of their sexuality and stating they were unstable and she made a number of disparaging comments about their relationship and lifestyle.
The Judge heard evidence from the parties on the key factual dispute between them which was whether this conception was intended (as S said) to be a baby for S to look after with H donating his sperm. Or was the agreement as H and B said that there was a surrogate arrangement where H and B would care for the baby but S would play a role in the baby's life.
The Judge concluded that the stated intention between the parties was that H and B would be the main carers, and more significantly that rather than this being a case where mum changed her mind after the birth (as can happen), that she had basically tricked and manipulated these men into providing a baby for her when they would never have agreed if they had known it was always her intention to keep the child. The Judge, therefore, directed that the child live with H and B.
It is rare that surrogacy agreements break down but, unfortunately, the informal framework which we have in this country leads a lot of people to make arrangements outside of England in countries such as India and America. In these countries, surrogacy agreements are legally binding which means cases like this can be avoided.
Hannah Cornish is a Family Law Associate Solicitor at Slater and Gordon Lawyers UK.
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