A UK High Court judge ruled earlier this year that the biological father of a child born to a surrogate should be able to keep the baby. The surrogate had been in a court battle over parenthood with the man following the birth of the child in December 2005. The court's decision was handed down in July, but only made public last week, after the Court of Appeal dismissed the woman's appeal saying that the trial judge had 'crucially' found that the woman and her husband had deliberately embarked on a path of deception.
The woman, known only as 'Mrs P', had apparently deceived the man and his wife into believing that she had miscarried the child she had conceived using the commissioning father's sperm, and agreed to carry for them. Once the commissioning father found out that this was untrue, he and his wife launched legal proceedings. The judge found that while Mr and Mrs P had been good parents to the boy, they had deliberately embarked on surrogacy with the object of adding to their own family and had never intended to hand the baby over. The little boy now lives with his biological father and his wife, known only as Mr and Mrs J.
The court heard that the surrogate had also deceived another couple previously - in that case the father did not learn that a child had actually been born until the girl was four years old. Then, the girl's biological father, who had paid Mrs P £850, decided not to apply for custody of his daughter and Mrs P was allowed to keep her. The father instead sought a court order for contact with the girl, and later made an agreement with Mrs P that his daughter would be told about him at the appropriate time and that he would be allowed to see her.
The information about the deceptions came from the woman's 19-year old daughter, who informed the surrogacy agency that the couples had gone through. The surrogate already had three children of her own but was motivated by 'a compulsive desire to bear further children', found the court. The couple's actions were evidence of a 'desperate desire to parent more children by fair means, or failing that, foul', said the judge.
Mr Justice Coleridge, hearing the case at the High Court, ruled that the surrogate should give up the boy because she had set out to deceive both couples. It was for the court to decide, based on the best interests of the child, which set of parents would be better for the boy's upbringing in the long term, he added. Recognising that surrogacy arrangements are a feature of contemporary life, he acknowledged that 'when all goes according to plan they are a way of remedying the agony of childlessness'. But he added that 'when arrangements do not go according to plan, the result, in human terms and legal terms is, putting it simply, a mess' and that 'the cost, in terms of appalling emotional pain for the parties, is huge'.
The judge also issued a warning to surrogacy agencies, saying that they should make more stringent background checks on women putting themselves forward to become surrogates. While surrogacy is legal in the UK, agencies must operate on a not-for-profit basis and surrogates are not allowed to be paid more than 'reasonable expenses'. Notwithstanding this, arrangements are unenforceable and usually if the surrogate changes her mind she will be entitled to keep the child.