Jemma Dally, Partner and Head of our Adoption, Surrogacy and Fertility Team, acted for the Respondents to the recent reported Court of Appeal case of – Re H (Surrogacy Breakdown)  EWCA 1798 (Civ)
The case concerned a surrogacy arrangement entered into by same sex couple (A and B), using a married surrogate (C). The surrogate’s husband (D) was therefore a party. The arrangement resulted in the birth of a child, H.
The relationship between the respective couples broke down during C’s pregnancy. The day before H’s birth, A and B received a letter from C and D’s solicitor to inform the intended parents that C and D were not prepared to follow their surrogacy arrangement. When H was born, C and D did not inform A and B. Further, C and D registered H’s birth using a name of their choice, rather than that which the intended parents had chosen for H. A and B immediately applied to the court to ward H.
C and D made it clear that they would not give consent to a parental order, so the court was concerned with issues of child arrangements and parental responsibility. At first instance Mrs Justice Theis determined that H should have her home with the intended parents, A and B, and have contact with the surrogate and her husband, C and D, six times per year. Both A and B were granted parental responsibility in respect of H and limitations were placed on C and D’s ability to exercise parental responsibility in respect of H.
C and D appealed the order of Mrs Justice Theis. The Court of Appeal dismissed the appeal (for reasons set out in paras 25(1) – 25(5)) and affirmed Theis J’s application of the welfare principles in cases involving a breakdown in surrogacy arrangements.
The case provides valuable insight into the complexities of surrogacy arrangements, and in particular the legal implications that can follow where there is deterioration in the relationships of those involved.
A full link to the judgment can be found below