LONDON (Thomson Reuters Foundation) - A baby girl conceived through surrogacy will be removed from her biological mother and live with her father and his gay partner instead, a High Court judge in Britain has ruled.
The judgment follows a legal dispute over the nature of the parents’ agreement when the child was conceived.
The father, who donated sperm, said the mother had agreed to be the gay couple’s surrogate, but she said they had agreed that she should be the baby’s main parent.
Ms Justice Alison Russell ruled that the mother had misled the two men when making the informal arrangement over the child, now 15 months old, and had always intended to keep it, rather than changing her mind during the pregnancy.
“Very sadly this case is another example of how “agreements” between potential parents, reached privately to conceive children to build a family, go wrong and cause great distress to the biological parents and their spouses or partners,” she said.
Surrogacy campaigners say such cases are very rare and highlight the importance of surrogacy arrangements being built on friendship and trust between the mother and couple involved.
The High Court case was heard in London and Birmingham earlier this year, but the decision has just been published.
Surrogacy in Britain is legal but it is a crime to advertise for a surrogate or to offer your services as a surrogate. It is also illegal to pay a surrogate a fee, but surrogates can be reimbursed for expenses such as medical bills and clothes.
The woman who gives birth is the legal mother and has no obligation to give the baby up once it is born. The couple using the surrogate must apply for a parental order to become the child’s legal parents after the baby is born.
The row between the gay couple and the mother began after an apparent surrogacy deal broke down before the birth.
The judge said the woman gave birth without telling the father, breast-fed the child in an attempt to demonstrate her closeness to the baby, and breached prior court orders by baptizing and naming the child against the gay couple’s wishes.
The woman also made a deliberate attempt to discredit the two men in “a homophobic and offensive manner”, Russell said.
She had insinuated that gay men in same-sex relationships behave in a “sexually disinhibited manner” and said they were “sexually disloyal to each other”, according to the judge.
“[The mother] has consistently done all she can to minimize the role that [the father] had in the child’s life and to control and curtail his contact with his daughter,” she said.
“Far from being a child that she conceived with her good friend, as she describes it, her actions have always been of a woman determined to treat the child as solely her own.”
Natalie Smith, a trustee of Surrogacy UK, said the legal situation could be improved but warned of the dangers of introducing legally binding contracts for surrogacy agreements.
“A contract which forces a woman to give up the right to make decisions about her body as part of a paid-for service would be a move towards a commercial model,” Smith said.
“This raises a raft of ethical questions... and the risk of surrogates being coerced through financial gain,” she told the Thomson Reuters Foundation by phone.
While most countries ban commercial surrogacy, India remains a popular destination for “rent-a-womb” tourism, which brings in an estimated $500 million to $2.3 billion annually.
Reporting By Kieran Guilbert; Editing by Tim Pearce