Lies, damned lies and surrogacy

What is the law to do when people deceive each other about their intentions as parents? In what is thought to have been the first case of its kind, the UK's High Court in G v G [2012] has rejected a father's application to reverse an order transferring legal parenthood of a child from a surrogate to his wife (1). The man alleged that his wife, who had left him shortly after the original order was granted, had concealed her intention of not wishing to remain in the marriage.

In making the decision against the father, Mr Justice Hedley agreed that while the wife had misled the court as to the true state of their marriage, the bar to overturn a parental order was set very high. Importantly, the child had been under the care of the intending parents from birth until their separation, after which the wife had assumed primary care. A decision to overturn the order would have meant that the only mother the child knew would, in effect, become a legal stranger. This would have undermined the welfare of the child principle, which following a recent change in the law is now paramount in all such cases.

In this case, the surrogate, who was also the child's biological mother, apparently would have asked for the child to be returned to her, and so there would have been little practical benefit for the father in overturning the order.

The decision in G v G is consistent with previous rulings relating to deception and surrogacy arrangements. The most usual deception is by biological mothers who had backed out of surrogacy agreements and the ensuing disputes were concerned with who the child should live with, rather than overturning any parental order (which anyway cannot be made in the absence of the biological mother's agreement).

In the case of Re TT (Surrogacy) [2011], a woman met a couple via the internet and entered into a surrogacy arrangement with them. During the course of the pregnancy, however, the relationship deteriorated and she refused to hand the baby over once it was born (2).

The court ordered that the child should live with the surrogate, who was the biological mother, rather than the intended parents. It decided that undue weight should not be given to her change in mind, as she had entered into the agreement in good faith. Unlike in G v G, the child had remained in the surrogate's care since birth and had formed an attachment with her. Therefore to remove the child would cause a measure of harm.

However, in an earlier case of Re P (Surrogacy: Residence) [2007] the court decided that the child should live with the intended parents, rather than the surrogate biological mother, after she had lied to them about having a miscarriage in order to keep the child (3).

Rather disturbingly, this was not the first time she had lied to a couple about having a miscarriage in order to back out of a surrogacy agreement. The court said she was not capable of meeting the child's long term emotional needs given her behaviour and the child was more likely to develop into a more balanced person living with the intended parents.

What is consistent throughout these cases is that the deception itself is not the key issue, but rather it is what the deception indicates about the ability of the various parents to meet the child's needs. In G v G, it seems unlikely that it would have ever been in the best interests of the child to overturn the parental order given the length of time the child had lived with the wife, even if there had been a deliberate deception.

Evidence of deception would probably prove damaging in any dispute as to who the child should live with, however. Mr Justice Hedley commented that it would be intolerable that one parent should be, or even appear to be, marginalised in light of the original agreement. An intention to deceive one parent from the outset would raise serious concerns of the willingness of the other not to marginalise them.

Readers will be aware that this is a developing area of case law following the Human Fertilisation and Embryology Act 2008 and recognising this, Mr Justice Hedley granted permission for the father to appeal, if he wants, as it would be in the public interest for the Court of Appeal to provide further guidance.

Until such clarification has been provided, couples intending to enter into a surrogacy arrangement should make sure they are aware and understand all of the implications of the process and the law surrounding it.