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Surrogate to keep custody of baby following appeal

10 April 2017
Appeared in BioNews 896

A decision granting custody of a baby to a surrogate has been upheld by the Court of Appeal.

The child, now 20 months, was born after a surrogacy agreement broke down and has lived with the gestational mother and her family since birth. Last year the Family Court ruled that the child should remain with the mother (see BioNews 858) but the intended parents challenged the decision.

The male civil partners met the woman on a Facebook surrogacy group; they relied on a document downloaded from the internet in place of a contract and agreed to pay her £9000 expenses. They only had one face-to-face meeting with her before she travelled to Cyprus for the embryos, created using donor eggs and one of the men's sperm, to be implanted. The couple already has twins carried by a different surrogate, with whom they have also fallen out. One of the couple is the genetic father of all three children, and the same egg donor was used, so the twins are full siblings of the baby.

The surrogate has learning difficulties and is described by the court as being vulnerable. The judge in the original case said that the couple's treatment of her, and of their first surrogate, was 'unsympathetic' and 'potentially exploitative'. However, the surrogate's home and family were described as 'loving and joyful' and she was found to be a good mother.

'I have concluded... that it is in [the child's] best interests to remain living with [the mother],' said Ms Justice Russell in the original verdict. 'She is, quite apparently, more emotionally available and has a greater instinctive understanding of his emotional needs.'

The woman – who lives with her partner and their six-year-old son – is genetically unrelated to the baby, but by virtue of being the birth mother is automatically the child's legal parent. Her partner and the biological father also both had parental responsibility, and the Court of Appeal have extended this to the father's partner too.

The fact that the mother and her partner accepted the commissioning couple as an important part of the child's life was also paramount: 'She is the parent who is much more likely and able to be able to treat both the applicants in an open and generous way and to enable [the baby] to develop a good relationship with [the couple] and his siblings and so to allow him to develop a wider and a more positive sense of his own identity,' noted Russell J.

Re M (child) [2017] EWCA Civ 228
Bailii |  6 April 2017
Re Z (surrogacy agreements) (Child arrangement orders) [2016] EWFC 34
Bailii |  30 June 2016
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