London - A British judge has warned of the dangers of informal surrogacy agreements after a woman found she had no parental rights to the baby she had asked her friend to conceive with her husband.
The “do it yourself”-style surrogate pregnancy ended in the High Court after the boy, now three, was effectively left with two mothers.
Unable to have children of her own, a woman asked a close friend to be artificially inseminated at home with her husband’s sperm.
But when the woman’s marriage broke down months after the birth of the child, she found she had no parental rights because she was not the boy’s legal or biological mother.
She was granted a residency order to care for the child, but the judge warned against anyone considering an informal surrogacy agreement, rather than through a professional agency.
Describing the case as a “cautionary tale”, Mrs Justice Eleanor King underlined the “real dangers” of private surrogacy agreements and urged couples to use licensed and regulated fertility clinics.
Even then, surrogacy contracts are not enforceable and a gestational mother can always change her mind about handing the child to the couple.
The father and surrogate mother were named on the toddler’s birth certificate and, in the eyes of the law, they are his parents.
The judge said medics had spotted something was amiss when the surrogate mother booked herself in at the Leicester Royal Infirmary to give birth.
Doctors insisted on seeing a formal surrogacy agreement and the couple went to a firm of solicitors, who drafted an agreement. Mrs Justice King said the solicitors unwittingly committed a crime when they drafted it, because they charged for the preparation of the agreement, which is in breach of the Surrogacy Arrangements Act 1985.
The couple’s relationship broke down soon after the birth and they have since divorced. The court heard they made a second legal error when they failed to seek court recognition of the woman’s parenthood within six months of the birth.
The judge said the time limit was mandatory and making a parental order in the woman’s favour was “not an option”.
Allowing her to formally adopt the child was also not an option and the woman was left with no legal rights over the boy.
The judge said social workers and lawyers had worked hard to find a solution. After several years of “bitter recriminations” the couple set aside their grievances and put in place practical shared care arrangements, the court heard. While the woman could never become the boy’s legal mother, Mrs Justice King said steps could be taken to “provide her with security and recognition of her status”.
The surrogate mother, who remains a close family friend, technically has parental responsibility for the boy.
But the judge directed that he should remain a ward of court indefinitely and made a shared residence order in favour of the former couple, effectively granting the woman parental responsibility for the child.
The surrogate mother was banned from exercising her parental rights without permission from the court. - Daily Mail