A surrogate mother who decided to keep a gay couple’s baby after carrying it to term has been ordered to give it back to them. According to the judge’s ruling, the 18-month-old’s needs “would be best met by living with a genetic parent.”
The couple, who remains anonymous, signed a surrogacy agreement with the surrogate mother in 2015. She was implanted with an embryo comprised of a sperm cell from one of the men and an egg cell from a Spanish donor. But, during her pregnancy, she had a falling-out with the couple and informed them that she was keeping the baby. She did not let the couple know until after the baby was born that she was keeping it.
They immediately filed for custody proceedings and were granted custody over the child on December 13th of last year. The surrogate mother filed an appeal with the England and Wales Court of Appeal, but her appeal failed to the judge’s decision on November 17th. However, she and her husband were granted visitation rights six times a year.
Currently, in the UK, surrogacy arrangements are not recognized by law, and the surrogate mother is recognized as the birth mother. But in this case, Lord Justice McFarlane ruled that the same-sex couple should keep the child, as they were better equipped to provide for her welfare. She cited the genetic connection and the same-sex couple’s superior ability to deal with her “everyday needs.” She also mentioned the fact that the birth couple was far more likely to obstruct the formation of a relationship with the other set of parents, given their hostility during the trial.
In her closing argument, McFarlane remarked on the difficulty of resolving such a case. There are no internationally agreed-on norms governing surrogacy, as the technology allows for it is fairly recent, and McFarlane called the case, “another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind.” Currently, surrogacy agreements are not legally enforced in Britain, although the case has spurred the Law Commission to create a formal framework.
Commercial surrogacy, where the mother is paid on top of any medical expenses she might incur, is legal in India, Ukraine, and the state of California. Countries like England and Australia have banned the practice, although they will recognize altruistic surrogacies, and countries like Germany and Italy have banned the practice altogether. The differing laws have led some couples to engage in “surrogacy tourism,” where they travel to a country with more lax laws about surrogacy to find a surrogate mother. “Surrogacy tourism” raises questions about citizenship and exploitation that many courts are not yet equipped to deal with.
In her final words on the case, Justice McFarlane reaffirmed that the most important factor in her decision was the welfare of the child: “The more unusual the facts, the greater the need to keep the child at the heart of the decision.”
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