Surrogacy deal is overturned in first UK case of its kind
Birth mother challenged order after intended parents refused to give her agreed contact with baby
A SURROGACY arrangement has been overturned more than two years after the baby was born in what is thought to be the first UK court ruling of its kind.
The baby boy was born in September 2020 and taken into the care of the intended parents, a married couple.
The surrogate mother, who is British and who knew the couple well, agreed to carry out the procedure using her own egg on the understanding that she would have regular contact with the child.
The woman, who did not wish to act as a parent, was paid £11,000.
But the arrangement collapsed when the intended parents broke their promise of letting the surrogate mother have contact with the baby as they did not want her involved in the child’s life.
Alongside the parental order – the legal mechanism by which a baby born through surrogacy is transferred from the custody of the birth mother to that of the intended parents – a child arrangements order was also made.
The second order legally established the ongoing contact the surrogate would have with the child after birth.
Now, in a legal first, the Court of Appeal has set aside the parental order, finding it should never have been granted by the family court in the
‘The whole point of this was to spend time with the baby. It was never my intention to overturn the parental order’
first place, because the surrogate’s consent was conditional upon her seeing the child.
The court ruled that it was not compatible with s.54(6) of the Human Fertilisation and Embryology Act 2008 and that the consent of the surrogate must be given freely and unconditionally.
The couple’s request to appeal has been rejected, with the case now likely to go to the Supreme Court.
Speaking to The Sunday Telegraph, the surrogate explained: “The whole point of me doing this was to spend time with the baby. It was never my intention to overturn the parental order.
“I don’t want to stop fighting as I believe he has a right to know who I am. They want him to think he has an egg donor and a surrogate, and he doesn’t need to know that’s the same person.”
Janet Bazley KC, who represented the surrogate, said: “We argued successfully that her consent was given on the basis a contact order would be made in her favour and so was conditional.”
The ruling comes as surrogacy laws in the UK are set to change, and Ms Bazley said the case could influence the reforms. The Law Commission is due to publish a draft Bill within months.
About 400 parental orders are issued by UK courts every year.
Lexi Ellingsworth, co-founder of Stop Surrogacy Now UK, a campaign group who are challenging proposed law reform and who help those who regret becoming surrogates, said: “Consent is key to ensure a good outcome for all and it’s disturbing to see how surrogacy prioritises the commissioning parents above the needs of the child and erases the birth mother.”