Last week Ms Justice Russell sitting in the High Court had to determine arrangements for a child conceived following a surrogacy agreement, the terms of which were intensely contested.

An application was made jointly by the child’s father, identified in the case only as H, with his partner known as B. The application was for what was previously known as a residence order that the child lives with them and spends time twice per week with the mother. The mother, referred to as S, had made a cross-application for a residence order that the child live with her.

S argued that H had acted as a sperm donor to her, whilst H and B argued that there was an agreement that S had agreed to act as their surrogate to enable them to have a family.

The court’s function however was not to determine the nature of the agreement between the parties but to make a decision based on what would be in the best interests of the child in both the short and longer term.

Both H and B had always anticipated that S would play some role in her daughter’s life but argued that they were intended to be her main carers. When reaching their decision the court had considered that the child had spent the majority of her short life with her mother. However, the court noted that the father had a more child-focussed approach. This would be important as the child grew older when questions came regarding her identity and heritage, something the court felt the mother would not promote.

Since the decision lawyers in this discipline have called for the rules relating to surrogacy agreements in England and Wales to be tightened or reformed. This is something that Ms Justice Russell also touched upon in her judgement:

“Very sadly this case is another example of how ‘agreements’ between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.”

Surrogacy agreements are not binding in the courts of England and Wales. However, the court has a wide discretion when it comes to deciding matters concerning children and will act in the child’s best interests. The court in this instance has behaved in the same way as if the couple bringing the application were a couple of the opposite sex. The problem as Ms Justice Russell out it is the ‘lack of a regulated framework for arrangements of this kind’.

A more structured framework for surrogacy agreements would assist parties like H,B and S to avoid the likelihood of unnecessary litigation in the future. Until further consideration is given to the rules presently in place parties must be urged to take specialist legal advice if they are considering entering into a surrogacy agreement.

Farleys have a team of specialist family lawyers who are able to provide expert advice in relation to all types of family related matters, including arrangements relating to children. For further information please don’t hesitate to contact us on 0845 050 1958, alternatively please complete an online enquiry form.