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Judge condemns surrogacy 'market' and allows surrogate to keep baby

4 July 2016
Appeared in BioNews 858

A surrogate has been allowed to keep a baby after refusing to hand the child over to the intended parents after birth.

The woman agreed to act as a surrogate for a same-sex male couple after being introduced through a Facebook surrogacy website. A document that had been downloaded from the internet was signed by the parties after meeting briefly at a fast-food outlet, under which the intended parents agreed to pay the surrogate £9,000 for expenses.

Two embryos were transplanted at a fertility clinic in Cyprus that had been stored previously by the intended parents, created using one of the man's sperm and donated eggs. The surrogate was therefore not the child's genetic parent.

Sometime after becoming pregnant with twins, however, the surrogate began to have doubts about continuing with the arrangement. She miscarried one fetus but did not inform the intended parents that one fetus remained, carrying it to full term. The intended parents were then only informed just weeks before the child's birth, and launched legal proceedings immediately afterwards.

Ruling that it was in the child's best interests to remain living with the surrogate, Ms Justice Russell said she was 'better placed to meet his emotional needs. She is, quite apparently, more emotionally available and has a greater instinctive understanding of his emotional needs.'

Separating the child from his birth mother would have a detrimental impact on him, the judge explained, and that a genetic relationship with his biological siblings (the intended parents already had existing children) did not justify moving the child from a 'warm, happy and loving home'.

Ms Justice Russell also ruled that, as the child would be living with the surrogate and her partner, the partner should be given parental responsibility over the child. The biological father would continue to have parental responsibility, with contact granted to the couple of one weekend every eight weeks. The surrogate, being the birth mother, automatically had parental responsibility and was also child's legal parent.

Ms Justice Russell was also critical of how the arrangement was conducted between the parties. The surrogate was described as a 'vulnerable young woman in her very early twenties of limited income' and also had learning difficulties. 
The only times the surrogate met face to face with the biological father was the initial meeting in the fast-food outlet and the embryo implantation in Cyprus, where the judge said she was 'effectively excluded from discussions at the clinic' and felt 'isolated' with no credit on her phone. The procedure in Cyprus was said to have had a 'huge impact' on the surrogate, whose doubts before the trip were subsequently intensified.

Sarah Norcross, director of the Progress Educational Trust, the charity which publishes BioNews, said: 'The UK's surrogacy law is over 30 years old and urgently needs to be reviewed and reformed so that the welfare of children is better protected.'

Ms Justice Russell also presided over another recent surrogacy case in which the parties met through the same Facebook site. In this case she was critical of the same-sex couple for misleading the court about how much they paid the surrogates, calling their behaviour 'reprehensible'. Nonetheless, she ruled that it was in the best interests of the children (three born to different surrogates within six months of each other) to grant the parental orders.

In both cases Ms Justice Russell added that the facts demonstrate the need for regulation, saying that there was a 'market' for surrogates with women being paid the 'going rate' of between £8,000 and £15,000.

'This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes,' she said.

23 October 2017 - by Dr Mary Yarwood 
A surrogate from Queensland, Australia has had her parental rights removed after a judge decided it was in the baby's best interests...
10 April 2017 - by Jen Willows 
A decision granting custody of a baby to a surrogate has been upheld by the Court of Appeal...
28 November 2016 - by Antony Starza-Allen 
A surrogate who lost a legal battle to keep her child has been granted supervised contact by the Family Court, although her attempt to regain custody has failed...
19 September 2016 - by Rikita Patel 
The Indian foreign minister has intervened on social media in the case of a British couple who face having to leave the country without their surrogate-born child...
9 May 2016 - by Antony Starza-Allen 
A federal parliamentary committee in Australia has recommended that commercial surrogacy should remain illegal in the country, but that altruistic surrogacy should be regulated at a national level...
23 November 2015 - by Antony Starza-Allen 
A report calling for reform of surrogacy laws in the UK has revealed that the majority of arrangements are conducted on an altruistic basis and do not take place abroad, contrasting with what it claims are commonly held misconceptions...
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