H (A Child : Surrogacy Breakdown)

Factual and Procedural Background

The appeal arose following an order made by Judge Theis on 13 December 2016 after the breakdown of an intended surrogacy arrangement involving two couples. The first couple, referred to as Appellants, are male same-sex partners (A and B), and the second couple, the Respondents, are a heterosexual married couple (C and D). The child, H, was born following a surrogacy agreement whereby embryos created from A and B's sperm and a donor egg were transferred to C, the gestational surrogate and legal mother. After deterioration in relationships and health issues for C, the Respondents decided not to hand over the child to the Appellants as initially agreed. Legal proceedings ensued, resulting in arrangements for shared care and contact, pending a hearing to determine H's future care.

The Judge, experienced in surrogacy cases, conducted a four-day final hearing, having previously dealt with the case on five occasions. Evidence was heard from the adults involved and the Children's Guardian, who filed two reports. The core issue was H's residence, followed by decisions on contact and parental responsibility for the other couple. The Judge ultimately awarded H's residence to the Appellants, with limited contact and parental responsibility arrangements for the Respondents, which is the subject of this appeal.

Legal Issues Presented

1. Whether the Judge erred in her evaluation of the evidence regarding the welfare of the child in an unconventional family structure following a surrogacy breakdown.
2. Whether the Judge's approach to limiting contact and parental responsibility of the Respondents effectively amounted to making a parental order without the statutory requirements being met.
3. Whether the Judge failed to properly balance the rights and interests of both couples, including considerations under Article 8 of the European Convention on Human Rights.
4. Whether the Judge should have applied principles akin to those in cases of separated parents under the Children Act 1989, including the presumption of parental involvement.
5. Whether the specific issue orders concerning parental responsibility and travel abroad were appropriately precise and proportionate.

Arguments of the Parties

Respondents' Arguments (C and D)

• The Judge's order limiting their contact and parental responsibility was tantamount to an unauthorized parental order.
• The Judge failed to strive for a solution that provided the child with two homes and four parents, neglecting the purpose of contact and Article 8 rights.
• The criticism of the Respondents as rigid was unfair and unbalanced compared to the shortcomings of the Appellants, reflecting a punitive approach.
• The case should have been treated like any other parental breakdown case, applying the presumption of parental involvement and enforcement powers under the Children Act 1989.
• The specific issue orders on parental responsibility and travel were overly broad and insufficiently clear.

Appellants' Arguments (A and B)

• Once the surrogate mother decided not to abide by the surrogacy agreement, the case fell under the welfare provisions of the Children Act 1989, not surrogacy legislation.
• The Judge's findings on residence, contact, and parental responsibility were supported by evidence, including concerns about conflict and the child's need for primary attachments.

Children's Guardian's Position

• Supported the Appellants' claim for residence, emphasizing the child's need for one stable home and protection from conflict.
• Recommended limited contact with the Respondents to balance emotional stability and knowledge of birth family.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasized that the welfare of the child is the paramount consideration, consistent with established precedent, and that no special legal approach applies solely because of the surrogacy context. The purported novel legal issues concerning the interaction between the Human Fertilisation and Embryology Act 2008 and the Children Act 1989 were dismissed as the appeal boiled down to a factual evaluation of evidence.

The Judge was found to have correctly applied a conventional welfare approach to an unconventional family structure, assessing parenting capacity and the child's identity needs. The court endorsed the Judge's view that H's best interests were served by residing with the genetic parents (Appellants) who could provide attuned care and promote relationships with the Respondents despite difficulties.

The court rejected the argument that the Judge's orders amounted to a parental order, clarifying that the Judge’s order preserved the legal status of the Respondents as legal parents and allowed for ongoing contact. The court also dismissed the contention that the Judge should have aimed for two homes and four parents, finding that a single secure home was necessary and proportionate for H's welfare.

The Judge's criticism of the Respondents related to their capacity to resolve disputes rather than their desire to retain the child. The court found no punitive bias in her reasoning.

While acknowledging that the orders relating to parental responsibility and travel might have been more precisely expressed, the court found no invalidity in them and encouraged the parties to supplement these arrangements through a parenting plan.

Holding and Implications

The appeal is DISMISSED.

The court upheld the Judge's welfare-based decision that H should live with the Appellants, with limited contact and parental responsibility arrangements for the Respondents. No new legal precedent was established; the decision confirms the application of established welfare principles in surrogacy breakdown cases and underscores the importance of focusing on the child’s best interests rather than rigidly applying surrogacy agreements or parental presumptions. The court also highlighted the complexity and ethical challenges of surrogacy arrangements, endorsing the need for a properly regulated framework as currently considered by the Law Commission.