A surrogate mother won a landmark case in London, UK, against a same-sex couple that allegedly barred her from seeing the child she carried and birthed. The couple allegedly tried to erase the biological parent from the life of the baby, a boy. For legal reasons, all parties involved could not be named in the article.

The same-sex couple, who were identified as gay men, reportedly claimed that the little boy would be confused if he saw his birth parent because he lived with them in a “motherless family” and was being raised within the LGBTQIA+ community.

The couple told the surrogate mom that there was “no vacancy” for her “just because [he] has same-sex parents” — even though he was conceived using her egg and carried in her womb, The Daily Mail reported on Monday (September 9).

The surrogate mom was reportedly accused of homophobia for insisting the little boy recognized her as his mother. She was reportedly further accused of pursuing an “inappropriate relationship.”

The intended parents reportedly argued that regular contact with their surrogate would give their child the impression that having same-sex parents made his family incomplete.

A lawyer with expertise in surrogacy exclusively spoke to Bored Panda about a landmark case that unfolded recently in London, UK

Image credits: KATRIN BOLOVTSOVA (not the actual photo)

On one occasion, the men even threatened to call the police when the woman turned up at their house to see the child she carried for a pre-arranged visit.

However, she was subsequently refused access, and a “horrendous” row ensued in the presence of the boy, The Mail reported.

The child, named “Z” in court proceedings, was reportedly born in September 2020. His two fathers, a married couple aged 36 and 43, were friends with the surrogate’s sister and were desperate for a child to complete their family, so she agreed to help.

After the transfer of a donor egg failed, they decided to try an egg belonging to the surrogate, referred to as “G” in legal proceedings, according to The Mail.

Image credits: freestocks (not the actual photo)

The men, referred to as “X” and “Y,” reportedly agreed that she would have contact with the child after they were born — but their relationship deteriorated during her pregnancy.

The couple claimed afterward they became frightened that she would refuse to hand the baby to them after birth, as per the British tabloid.

The surrogate mom went on to sign a parental order handing responsibility for the child to the two men, along with a second order ensuring that she could have regular contact with the child, who lived permanently with his dads.

Nevertheless, the intended parents reportedly reneged on that agreement, leading to the doorstep argument that sparked them threatening to dial 999 unless she left, the court heard.

A surrogate mother won a landmark case in London against a same-sex couple

Image credits: Pixabay (not the actual photo)

“G” had secretly recorded the altercation, and while the audio was not shared as part of the ruling, the judge in the case said it was rightly described as “horrendous,” not least because it was in the presence of their son, The Mail reported.

According to the British outlet, the men then pursued a series of legal cases against her that would cut “G” from the boy’s life.

In a landmark decision, the British court ruled against a step-parent adoption request from the intended parents, favoring the surrogate mother’s legal rights.

The child will now remain with the intended parents but will continue to have contact with the surrogate, who retains legal parentage.

Image credits: Freepik (not the actual photo)

Mrs Justice Theis said: “Whilst many surrogacy arrangements work very successfully, this case provides a graphic illustration of the difficulties that can be encountered if the arrangement breaks down.”

Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to delivery/labor on behalf of another couple or person who will become the child’s parent(s) after birth.

There are two types of surrogacy arrangements: Traditional surrogacy — the surrogate is artificially inseminated with the intended father or donor’s sperm.

The surrogate not only carries the child but also donates her egg, and as such, she is biologically related to the child.

The couple allegedly barred the woman from seeing the child she carried and birthed

Image credits: Freepik (not the actual photo)

In gestational surrogacy, the surrogate is implanted with an embryo via IVF, and, therefore, she is not biologically related to the child.

Often, the sperm and egg of the intended parents will be used, which means the child will be biologically theirs. 

A donor egg can be used, but at least one of the intended parents must be biologically linked to the child to apply for a parental order. If there is a double donation, then a parental order will not be possible. 

The legal framework for surrogacy varies depending on the country. In Poland, Italy, France, Germany, Austria, Sweden, Norway, and Switzerland, surrogacy is prohibited by law.

Image credits: RDNE Stock project (not the actual photo)

Nevertheless, flexible laws in other countries have reportedly led to the exploitation of impoverished women, among other ethical concerns.

Entering into a surrogacy arrangement in the UK has always been legal, but there are various rules and regulations that need to be carefully considered, according to Liza Gatrell, managing partner at Stowe Family Law.

However, this particular case has been very challenging for a number of reasons and highlights the complexities of surrogacy in England and Wales, she said.

Gatrell told Bored Panda in an email: “Despite the initial parental order being made for the intended parents, this was later revoked. 

Liza Gatrell, an expert in surrogacy law, pointed to the case’s previous agreement between both parties

 

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A post shared by Family Lawyer- Liza Gatrell (@yourfamilysolicitor)

“Surrogacy law in this country states that a surrogate must fully and freely consent to the order, and the court felt the surrogate’s consent was conditional and based upon her ongoing relationship with the child.

“The intended parents then applied for a step-parent adoption order and asked the court to dispense with the surrogate’s consent, which is possible in such proceedings, but this was also unsuccessful. 

“A key factor in this case is that the evidence pointed towards the parties having agreed that the surrogate would continue to play a role in the child’s life post-birth. 

“Problems then arose because the detail was not formally agreed, and the court accepted the surrogate’s evidence that she would not have entered into the surrogacy arrangement without the assurances being made.”

Image credits: Freepik (not the actual photo)

The lawyer further explained: “The intention behind a surrogacy arrangement is usually that the intended parents become the legal parents, and the surrogate’s legal parentage is removed. 

“However, in this case where a parental order was not possible, the Judge made an order that they felt more accurately reflected the child’s reality. 

“The order provided parental responsibility to both the intended parents and a child arrangements order confirming that the child would live with them (which was never in dispute). But only limited and did not remove the mother’s parental responsibility.

“This case also highlights the importance of honest and frank conversation prior to any treatment or pregnancy. 

There are two types of surrogacy arrangements

 

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A post shared by Circle Surrogacy (@circlesurrogacy)

“Here, a surrogacy agreement can help. While not legally binding in the UK, they are undoubtedly crucial and ensure that difficult discussions are had early on and clear agreements are made. 

“This reduces the likelihood of disagreements further down the line because there has been good communication and clarity.”

In the UK, when a child is born via a surrogate, the surrogate will be treated as the child’s legal mother, Gatrell said. Moreover, if the surrogate is married, her husband will be treated as the legal father.

Under current legislation in the UK, the intended parent/s may not obtain legal parentage without a court application for a parental order.

 

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Gatrell explained that in the UK, an application for a parental order can only be applied for after the child is born and a six-week period after the birth to allow the surrogate sufficient time to recover and determine whether she consents to the intended parent’s obtaining legal parentage.

The process of becoming legal parents can take months and affect the ability of the intended parents to make necessary decisions about their child or begin the life of their child in the way they wish. 

The expert on surrogacy law explained a parental order makes the intended parents of the child the legal parents and permanently removes the legal parenthood of the surrogate and her potential spouse.

Once the order has been made, the birth will be re-registered, and the original birth certificate will be sealed and only accessible to the child once they are over 18. 

The court process can take between four to 12 months and usually involves one or two court hearings. Certain criteria must be met to obtain a parental order, such as being domiciled in the UK and having a genetic link with the child.

The men reportedly pursued a series of legal cases against their surrogate

 

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A post shared by Circle Surrogacy (@circlesurrogacy)

“Contrary to popular belief, it is not illegal for intended parents to pay a surrogate more than her reasonable expenses,” Gatrell added. However, there is no definition of reasonable expenses, and in practice, the court often takes a relaxed approach.

 The lawyer shared: “The use of surrogacy arrangements for family building has increased in recent years, but our laws have not kept up, and they are outdated and not fit for purpose. 

“This causes an added layer of complexity and stress to what should be a happy time.

“Currently, surrogacy agreements are unenforceable, and there is no scrutiny of surrogacy arrangements until after the baby has been born, and by then, arguably, it is too late. 

“The inability to obtain a pre-birth order in the UK leads many intended parents to travel overseas, adding expense, stress, and concerns about violation of women and children.”

“This is a sad situation for all,” a reader commented

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