Consenting freely to surrogacy?

A lot has been reported recently about a surrogacy case whereby a couple who were to be the intended parents were described as ‘manipulative and dishonest’.  The surrogate had been ‘matched’ to the gay couple by a fixer who runs a secret Facebook forum for intended parents looking for surrogates. The surrogate met with the couple in Burger King for 30 minutes and agreed to carry the baby during that meeting. The baby was created using a donor egg and the sperm of one the gay men. The couple agreed to pay £9,000 and two embryos were transferred at a clinic in Cyprus. The surrogate miscarried one of the babies, but decided to keep the second even though she had doubts about the arrangement after receiving a message on Facebook from a previous surrogate for the couple.

After the baby was born, the surrogate refused to hand over the baby and court proceedings were initiated to determine as to where the child should live. Ms Justice Russell ruled in the High Court that the child should remain with the surrogate even though she has no biological link to the child. She said that the surrogate was ‘better able to meet’ the child’s needs and that the couple’s dealings with the surrogate were ‘manipulative and dishonest’ and ‘at the very least, potentially exploitative’.  The surrogate has learning difficulties which meant that she was unable to consent freely or unconditionally to the arrangement. The surrogate and her partner will share parental responsibility alongside the biological father. The child will live with the surrogate, her partner and their six year old child, and will have contact with the commissioning couple for one weekend every eight weeks.

The case is sensationalised in the media because of the fact the parties met in Burger King and the surrogate refused to hand over the child. Not all aspects of the case however have been reported in the media and therefore it is important to remember that these scenarios are rare, and can be avoided if proper steps and advice is taken. It is a wonderful gift to be a surrogate, but the surrogate needs to fully appreciate what is involved and it is helpful if they can have some counselling before embarking on such a journey. Equally, the commissioning parents need to build a relationship with their surrogate and a 30 minute meeting is not adequate. Several meetings and discussions should take place. It is also advisable to have a surrogacy agreement in place recording each of the parties’ intentions and wishes regarding all aspects of the pregnancy, birth, and post-birth processes. The agreement can also deal with payments and expenses that are paid to the surrogate as these must be reasonable. The number of babies born through surrogacy is increasing year on year, but thankfully these types of cases are rare. For further information and advice, please contact us on 02392 370634 or scloke@biscoes-law.co.uk