Z (surrogacy agreements : Child arrangment orders)

Factual and Procedural Background

This case concerns a dispute arising from a private gestational surrogacy arrangement involving a child born in England in 2015. The surrogate, referred to as the 1st Respondent, is a young woman with learning difficulties and limited financial means, who agreed to act as a surrogate for a same-sex couple, the Applicants. The child, Z, is biologically related to one of the Applicants and an egg donor, but the surrogate is legally treated as the mother under the Human Fertilisation and Embryology Act 2008 (HFEA). The surrogacy agreement was informal, entered into after an introduction via an unregulated Facebook forum, and involved payments for expenses at a level considered low by market standards.

During pregnancy, the surrogate miscarried one of two embryos but concealed the continued pregnancy with the surviving embryo from the Applicants. The surrogate later withdrew consent to hand over the child at birth. Legal proceedings were initiated by the Applicants seeking child arrangements orders and parental responsibility. The child has been separately represented by a guardian appointed by Cafcass Legal. The surrogate’s cognitive abilities were assessed during the proceedings, leading to the appointment of an intermediary to assist her in giving evidence. The child has a suspected medical condition requiring ongoing specialist care.

The court has had to consider the welfare of the child in deciding with whom the child should live, applying the welfare checklist under the Children Act 1989, due to the surrogate’s refusal to consent to a parental order under the HFEA. The case has involved extensive evidence, including psychological assessments, social and family history, and the conduct of the parties before and after birth.

Legal Issues Presented

1. Whether the surrogate’s consent to a parental order under the Human Fertilisation and Embryology Act 2008 was freely given, fully informed, and unconditional, such that a parental order could be made.
2. In the absence of such consent, which party should the child live with, applying the welfare checklist under the Children Act 1989.
3. The extent to which the genetic relationship between the child and one of the Applicants impacts the welfare assessment.
4. Whether parental responsibility should be conferred on the surrogate’s partner who lives with her and the child.
5. The appropriate arrangements for contact between the child and the Applicants.

Arguments of the Parties

Applicants' Arguments

• The child should live with them as they are better able to care for him physically and financially.
• The surrogate acted deceitfully by hiding the continuing pregnancy and should not retain custody.
• The genetic link between one Applicant and the child supports their claim to custody.
• The surrogate’s learning difficulties and vulnerability undermine her parenting capacity.
• They sought to secure parental responsibility and contact arrangements to reflect their parental role.

Respondent's (Surrogate's) Arguments

• The surrogate does not consent to a parental order and wishes to retain custody of the child.
• She felt used and pressured by the Applicants and was misled about the surrogacy arrangement.
• Her role as the birth mother and primary caregiver should be recognised in the welfare assessment.
• She has demonstrated parenting ability and commitment to the child despite her learning difficulties.
• She seeks to maintain the child’s best interests by providing a stable and loving home.

Guardian's Position

• It is in the child’s best interests to remain living with the surrogate as primary caregiver.
• The child has a strong bond and attachment with the surrogate and her family.
• Contact with the Applicants should be maintained but limited to avoid disruption to attachment formation.
• The surrogate’s partner should have parental responsibility to support the child’s welfare.
• The Applicants’ conduct towards the surrogate raises concerns about their ability to support a positive future relationship.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the surrogate’s lack of free, informed, and unconditional consent under the HFEA 2008, s 54(6), precluding the making of a parental order. Given this, the court applied the welfare checklist under the Children Act 1989 to determine the child’s best interests regarding residence and contact.

The court carefully examined the background, conduct, and characteristics of the parties. It noted the Applicants’ pattern of dismissiveness and lack of empathy towards their previous surrogate and the current surrogate, coupled with a failure to communicate effectively or appreciate the surrogate’s vulnerabilities. Conversely, the surrogate was found to be a vulnerable young woman with congenital learning difficulties but demonstrated commitment, parenting ability, and a loving bond with the child.

The court accepted expert evidence that the surrogate’s cognitive limitations affected her understanding of the surrogacy agreement and related legal implications. It also found that the surrogate’s emotional availability and instinctive understanding of the child’s needs were superior to the Applicants'.

The guardian’s comprehensive investigation and recommendations were accepted as well-founded and child-centred. The court recognized the child’s strong attachment to the surrogate and the potential harm to the child’s emotional development if removed from her care. The court also considered the surrogate’s partner’s role and the practical benefits of granting him parental responsibility to support the child and surrogate.

The genetic link between one Applicant and the child was acknowledged but regarded as only one factor among many, not determinative. The paramount consideration remained the child’s welfare, including emotional security, stability, and identity needs.

Contact arrangements were tailored to balance the child’s need for stability and attachment with the Applicants’ interest in maintaining a relationship. The court adopted the guardian’s recommendation for limited contact, reflecting the child’s vulnerability and the geographic distance between parties.

Overall, the court’s analysis was grounded in statutory welfare principles, expert evidence, and the factual matrix of the parties’ relationships and conduct.

Holding and Implications

The court’s final decision was to order that the child remain living with the surrogate (the 1st Respondent) and that the surrogate’s partner be granted parental responsibility. The Applicants retain parental responsibility as the biological father and will have contact with the child under a carefully managed schedule.

The court ordered contact to occur one weekend every eight weeks, alternating between the surrogate’s and Applicants’ locations, without overnight stays, until the child is approximately two years old. The child’s surname will include the biological father’s surname, reflecting the genetic connection.

This decision directly affects the parties by confirming residence with the surrogate and structuring contact and parental responsibility accordingly. No new legal precedent was established; the ruling followed established welfare principles and statutory frameworks.