Surrogacy, parenthood and disputes: are there any lessons to be learned?

Surrogacy has been around for many years and disputes rarely arise. There have only been a handful of published cases in the English courts where a surrogacy arrangement has gone wrong. However, the recently published case of TT (a Minor) [1] received national press and radio coverage, focusing on Mr Justice Baker's warning about the inherent risks of surrogacy, awarding care of the baby to the surrogate mother and yet again putting surrogacy in the media spotlight.
The case of TT (a minor) involved a woman who met a married couple over the internet and agreed informally to become a surrogate mother for them, conceiving by private arrangement using her own egg and the intended father's sperm. The agreement was not set up by one of the UK's not for profit surrogacy agencies and so the parties did not have the benefit of advice, counselling and support that such agencies routinely provide. The arrangement also followed a history of dealings with several internet surrogacy sites, the facts of which were disputed by the parties. The parties' relationship broke down during the pregnancy and the surrogate mother had a change of heart and decided to keep the baby. The intended parents then applied to court for a residence order. The baby girl was five months old when the court gave judgment and the intended parents had had only limited contact with her since birth.

The court's decision to award care to the surrogate mother was guided by the paramount consideration of the baby's welfare. This decision was based on the close attachment formed between the surrogate (and biological) mother and the baby, the ongoing breastfeeding and the risk of emotional harm if the baby was moved into the care of the intended parents in the stark manner the intended parents proposed. In particular, the court expressed concern about the intended parents' ability to meet the baby's emotional needs longer term and their lack of insight as to the importance of the baby girl's relationship and close attachment with the surrogate mother. Mr Justice Baker went on to highlight the risk that the '...natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child'. It was therefore a fact based decision and does not set a binding precedent, although it will inevitably strike an uncomfortable note amongst prospective intended parents.

The case of TT (a minor) highlights the advent of internet surrogacy sites that make informal surrogacy agreements possible, which leads to the question whether there would have been a different outcome if the parties had received support and advice from a surrogacy agency, together with counselling or some form of regulation earlier in the process. However, the fact that there have been so few published cases of surrogacy arrangements which have gone wrong in the UK is testament to the care and attention with which these arrangements are usually set up and approached by intended parents, surrogates, surrogacy agencies and, where conception takes place at a licensed clinic, by counsellors and medical professionals who have a duty to consider the best interests of any future born child.

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