RESIDENCE/SURROGACY: Re S

10 JUL 2007

(Family Division; Coleridge J; 10 July 2007)

The mother, who already had three children, each by different fathers, had entered into surrogacy agreements with two separate sperm donor fathers. In each case, in the early stages of pregnancy, the mother had falsely informed the donor father and his wife that she had miscarried. The couples did not discover that the mother had in fact continued with the pregnancies, and was, with her husband, raising the children as her own, until the mother's eldest child, aged 19, left home and contacted the surrogacy agency. The father of the 6-year-old surrogacy child eventually came to an agreement with the mother that the child would be told of her true paternity at an appropriate time in the near future and that there would subsequently be contact between father and child. The father of the 18-month-old surrogacy child, sought residence, with a view to adopting the child; he proposed contact to the mother and her husband. Both fathers claimed that the mother had tricked them, with the knowledge and consent of her husband who had fertility problems, into providing sperm donations, and that she had never intended to fulfil the surrogacy arrangements. Expert evidence was that the mother's apparent willingness to provide the fathers with contact could not be relied upon. On the basis that it was in the child's best interests to live with the biological father and his wife, with good contact to the mother and her husband, the judge made a residence order in the father's favour. The mother's conduct in relation to the surrogacy was only relevant to the issue of credibility or suitability for the parental role; the court was not seeking to penalise the mother for her prolonged deception of two couples seeking to have surrogate children. The court had grave doubts about the mother's ability to sustain contact in a real and positive way over time. Both children were to be made wards of court to enable a level of supervision of the situation. The court urged all surrogacy agencies to ensure that their checks into the background of all parties to these essentially artificial childbirth arrangements were as thorough as they could be.

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