Surrogacy case highlights legal muddle

In a recent surrogacy case a high court judge has ruled that a baby born as a result of an arrangement between a mother, and a father who donated sperm, must live with her father and his partner rather than her mother.

The mother’s case was that the child had been conceived for the  mother’s benefit and that the parents had agreed for her to be the main parent. However, the father’s position was that the mother agreed to be the gay couple’s surrogate.

The mother disrupted the court proceedings and acted to all intents and purposes as if the child was simply hers and so as to exclude the father and his partner from the child’s life. The judge preferred the father’s interpretation of events and the ruling synchronises the position between the true circumstances of the child’s birth and the actuality of her living arrangements.

The decision highlights the inadequate state of the law around surrogacy arrangements in the UK. The UK’s current legal position is that the woman who gives birth is the legal mother, irrespective of whether the child is genetically hers. If she is married, her husband is the legal father.

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Nicola Furmston is a solicitor specialising in the family field at Barker Gotelee, Solicitors in Ipswich.