Surrogate 'to be recognised as a living part' of child's life, says judge

A surrogate has been granted access to her biological child, concluding a long-running legal battle over a parental order.

Supported by their Local Authority, the intended fathers, X and Y, applied to the court for a step-parent adoption order, seeking to revoke the surrogate's parental responsibility. This was opposed by the surrogate, G. The couple initially agreed that G could visit the child every six weeks, but later denied contact. To protect the child's privacy, all parties remained anonymous.

Mrs Justice Theis, the judge presiding over the case, 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.'

The couple met G, the surrogate, through a friend in 2018. After an unsuccessful attempt with a donor egg, the child, Z, was conceived through a 'traditional' surrogacy arrangement, using the surrogate's egg and sperm from one of the intended fathers. Z was born in September 2020.

The couple initially agreed that G would have contact with the child. However, tensions began during the pregnancy as the couple feared that G would refuse to hand over the baby. In the UK, the surrogate is the legal mother of the child at birth, regardless of genetic connection. Intended parents can apply to court for a parental order after the child is born to transfer parental responsibility, with consent of the surrogate.

Two months after Z's birth, G informed the couple she was 'feeling vulnerable' and sought legal advice before consenting to the parental order. She sought to ensure contact with the child, but assured the couple she did 'not intend to take on a parenting role'. In August 2021, G signed the parental order and was granted a contact order, allowing her to visit Z every six weeks.

The couple's relationship with G deteriorated further. The couple argued that G's visits made Z 'clingy and unsettled' and in early 2022, they refused her access for a pre-arranged visit with Z and threatened to call the police. Mrs Justice Theis said that the incident, recorded by G, was 'rightly described as "horrendous"'.

In February 2022, the court granted G's application to overturn the parental order, on the basis that her consent was conditional on the contact arrangements. This meant that the biological parents, G and one of the intended fathers, had parental responsibility for Z.

In the most recent ruling in January 2024, Mrs Justice Theis denied the couple's application for an adoption order as overriding the surrogate's lack of consent to do so, was not in the interests of the child. She acknowledged that three-year-old Z was 'clearly thriving' in X and Y's care but had recently expressed a desire to see G. Mrs Justice Theis emphasised the need for G 'to be recognised as a living part' of the child's life and warned that further legal battles would be 'inimical to Z's welfare'. She also stated that the G therefore remains the child's legal mother.

G will continue to have contact with the child. Z will continue to live with his fathers, X and Y. The non-biological father has been granted a standalone Parental Responsibility order.