A woman – known as S – who tricked a gay couple (known as H and B) into believing she would act as their surrogate but then denied the men contact with the child was ordered by Ms Justice Russell to hand the baby (known as M) over to H and B.
In this case, which was heard in London and Birmingham, S claimed that she had entered into a sperm donor contract with H (a long-standing friend) and that she would act as the child principal parent and carer. Her claim was disputed by the child’s biological father (H), who stated that their contract was that he and his partner (B) would co-parent the child, with S continuing to play a role in the child’s upbringing. Commercial surrogacy is currently illegal in the UK.
To obtain legal parenthood of a surrogate child, the commissioning parents must apply to the Family Court for a parental order within six months of the child’s birth. The parties must satisfy a checklist, one of which is the consent of the birth mother.
The Court has wide discretionary powers (conferred by section 12 (2A) of the Children Act 1989) in exercising the decision to make an order, having regard to all relevant facts. Where there is a dispute between the surrogate mother and the commissioning parties, the court will decide where the child resides and the allocation of parental responsibility based solely upon the best interests of the child rather than on the desires of parents.
This case highlights the importance the court attaches to interests of the child. The judge found in this case that S was showing much hostility towards the gay couple and putting her desire for another baby ahead of the baby’s interests.
Russell LJ found that S continually disrupted the gay couple’s evidence during court sessions by stopping proceedings to go and express milk. She also used the baby’s need to be breast-fed as a means to frustrate the father’s right of contact with his child. The judge said it was potentially emotionally damaging to use breast feeding as a way to ban the baby visiting her father. The Judge also observed S had used abusive and homophobic comments, insinuating that the men were in a flawed relationship, were promiscuous and drug users. She provided no evidence and then withdrew her allegations.
S also made up false hospital appointments to prevent the father from seeing his child and ignored a court order banning her from having the child baptised, which she later lied about.
Russell LJ ruled that the child should live with the gay couple as they would be able to provide a more stable home. The mother was granted supervised contact.
