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As we have remarked before, the use of surrogacy arrangements is growing exponentially in this country, as it is around the world. For those who are unable to carry and give birth to a child themselves, it is one of a range of options available to form a family. Two cases have come to light in the last couple of weeks that highlight some of the issues that can arise. Interestingly, they both involve the same surrogacy brokers, who ran a Facebook page devoted to the subject that enabled those seeking surrogates and those offering to be surrogates to meet.

The first case involved a same-sex couple, A and B, who had previously used a surrogate to have twins, and sought a new surrogate to have another child or children using their remaining frozen embryos. They were introduced to a young lady, X, through the Facebook page. They met her briefly at a motorway service station and formed a surrogacy agreement with her using a form they took from the internet that was based on Californian law (which, as you would expect, is rather different from ours in this regard). X was not told, either by the prospective parents or by those involved in the Facebook page, that the couple’s previous surrogacy arrangement had ended badly. The payment agreed was at the low end of the scale.  She was taken abroad for the first time in her life, and in the presence of the father A, two embryos were implanted. X fell pregnant with twins.

The court found X to be very vulnerable, with learning disabilities, and not to have understood or even been able to read the contract or the legal framework she had entered into. The court heard that due to her limited understanding she had created a fantasy about the surrogacy, but this started to break down when she was faced with the harsh reality of embryo transfer outside the UK with a man she had only met briefly before, and then pregnancy with twins, which she couldn’t tell A and B she didn’t want.

X decided she wanted a termination, but was put under pressure not to have one by one of the the owners of the Facebook site (‘W’), whom the court found badly manipulated her. When X miscarried one of the foetuses, W supported her in her decision to tell A and B she had miscarried both. She later, without X’s knowledge or consent, told A and B that one baby had survived. X refused to hand over the baby to A and B when he (‘Z’) was born, and he has lived with X and her partner and son ever since. Legally, without a parental order from the court to enforce the surrogacy arrangement, Z’s parents are X and A.

Unfortunately, Z has health problems that may be congenital, but due to the anonymous egg donation his biological parents’ full medical history is not known, making the condition more difficult to treat.

The commissioning couple’s dreadful treatment of X throughout the arrangement, conception and pregnancy was a matter of great concern to the judge, as was their similar conduct towards their previous surrogate, which the judge considered to be relevant in terms of how they might relate to X in the future in the furtherance of Z’s best interests.  Considering what arrangements should be made for little Z, the court made an order that he should live with X, and that her partner be given parental responsibility for him too. Z will spend one weekend in 8 with A, who was also granted parental responsibility. B – A’s partner, but not the child’s biological parent – was not granted parental responsibility for the child, as the court found this would not be in Z’s best interests.

The judge said that W and the other owner of the Facebook page “effectively colluded in the potential exploitation of a young and very vulnerable woman.”

The second case concerns one couple who contracted three separate surrogates to have three separate children for them within six months, also through the same Facebook page. In this case, the court had already made parental orders for all the children, whose surrogate mothers were all content with, but were concerned with whether the payments made to the surrogates were within the bounds of the ‘expenses reasonably incurred’ permitted under statute for these arrangements. The sums paid were between £12,500 and £15,000.

The reason for the court to scrutinise surrogates’ expenses payments is:

“to ensure that commercial surrogacy agreements are not used to circumvent childcare laws in this country, resulting in the approval of arrangements in favour of people who would not have been approved as parents on welfare grounds under any set of existing law such as adoption. To paraphrase Hedley J, the court must be careful not to be involved in anything that looks like a payment for buying. Such arrangements have been ruled out by Parliament and the court cannot be party to any arrangements which effectively allow them.”

The court examined the circumstances of all three surrogates and found that although the sums they received were not directly attributable to expenses as such, they represented fair accounts for expenses they had incurred. However, fearing that they might be caught out and might not get the parental orders they wanted, the applicant parents had lied to the court about how much they had paid, which had given a terrible impression to the court and had confused the proceedings. The court said,

“The amounts paid for expenses reasonably incurred should have been set out in detail and each expense identified, with documentary evidence in support of the amounts paid exhibited to the statements. However I accept that the applicants were acting in good faith and without moral taint in their dealings with the surrogates and that part of the reason that they were not able to set out the evidence of the surrogates’ expenses was because it was not available to them.”

As an aside, the court was scathing about the Facebook page owner’s conduct in this case too, finding her ‘defensive’ and ‘obstructive’. Potential surrogates and parents should be aware that the unregulated nature of the surrogacy ’market’ in this country can leave them at the mercy of unscrupulous people.

If you have any questions about surrogacy, or any other aspect of family law, you can give us a call on 01223 443333 and ask to make an appointment with Adam, Simon, Gail, Sue or Tricia.

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