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A recent case before the court provides a timely reminder of the pitfalls and difficulties which can arise as a result of informal surrogacy arrangements.
The case of Re Z  EWFC 34 involved a baby boy (Z) born as a result of an informal surrogacy arrangement. The commissioning parents, a male same sex couple made contact with the eventual surrogate, X, via a Facebook forum. The commissioning parents and potential surrogate met only once and it was at this meeting that they presented X with a typed commercial surrogacy agreement they had found on the internet.
Some months later, X travelled to Cyprus with one of the commissioning couple where IVF treatment took place. X became pregnant with twins. Sometime around the trip to Cyprus, X started to become apprehensive about the surrogacy agreement. Sadly X miscarried one of the embryos but the other survived. X decided to inform the couple that she had miscarried both embryos and keep the other child, Z.
Shortly before the birth of Z, thecommissioning parents were notified that X was still pregnant with Z. The couple made an application to court for a variety of orders that would confer rights on them in respect of Z, notwithstanding that X would be Z’s legal mother upon his birth. Following Z’s birth, X decided that she wanted to keep him although she agreed that he should have contact with the commissioning parents.
The couple applied to the court for a declaration of parentage, a child arrangements order for Z to live with them, a specific issue order in respect of Z’s name and a prohibited steps order preventing registration of Z’s birth, preventing publication and other issues relating to social media.
Within the proceedings, it transpired that X suffered from a severe learning disability and was extremely suggestible and vulnerable. The judge concluded that, even if X had consented to the making of a Parental Order, she could not have found that X’s consent was freely given. X had not been able to read or understand the agreement that the commissioning parents asked her to sign and her subsequent text messages and questions were a clear indication that she had not understood the gravity or the reality of what she had agreed to do.
The couple was heavily criticised by the court. They already had twins by another surrogate, V, with whom their relationship had completely broken down. The judge found that they had misrepresented their relationship with V to the Parental Order Reporter and the court for the purpose of obtaining a Parental Order. The court found that they had been self-centred, dismissive and completely lacking in empathy in their dealings with V and it appeared that history had repeated itself when they returned to the Facebook forum searching for a new surrogate just 48 hours after the making of the Parental Order in respect of their twins.
The commissioning parents had behaved similarly in relation to X. The judge found that their focus had been on their own objective of having a child and using X as a vessel for this purpose. They had not troubled themselves at all with trying to understand or empathise with how X might be feeling, much less ensuring that she understood everything and agreed freely to all that was happening.
Despite X’s learning difficulties and her overall vulnerability, the Parental Order Reporter found that X, who already had a son, was a good mother to him and to Z who had lived with her and her partner since his birth. The Parental Order reporter found X to be far more open, transparent and willing to accept advice than the commissioning parents who had come across as closed, cold and defensive in their dealings with the reporter. X had ensured that Z continued to spend significant time with the commissioning parents and members of her family had supported and facilitated this. The court found that Z was settled with X and her partner and they were meeting all of his needs. Whilst the commissioning parents were also able to meet Z’s needs, the reporter did not feel confident that they would promote the importance of the surrogate in Z’s life in the appropriate way given their attitude to her and their behaviour towards their previous surrogate.
The court made an order that Z should remain living with the surrogate and her partner with a reduced level of contact (one weekend every eight weeks with no overnight stays) with the commissioning parents until the child reached 24-30 months in order that he could form the secure attachments needed in these very early stages of his life.
This case is an extreme example of unpredictable outcomes for families who choose surrogacy and how things can go terribly wrong causing enormous upset and distress to all involved. The very nature of a surrogacy arrangement requires an open and respectful relationship built on a foundation of transparency and trust which was clearly so very lacking in this case. Fortunately, cases such as this are few and far between and those that do exist serve as a reminder to anyone considering having a family through surrogacy or becoming a surrogate themselves to take full and detailed advice at the outset and to consider all sides to a surrogacy arrangement.
Surrogacy can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.
If you would like to speak to one of our lawyers, who have significant experience in assisting families in their surrogacy journey and in preconception agreements, please contact Connie Atkinson or Olivia Stiles.
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