Couple ordered to pay £568 a month to a surrogate mum for a child they will never get to see

A couple who lost custody of their baby daughter to her surrogate mother have been ordered to hand over more than £500 a month maintenance for the child.

Today they spoke of their disgust that they would be forced to pay for someone else to raise the child they will never see. The father, a leading chef, said the decision by the Child Support Agency ‘added insult to injury’ and that he would appeal against it.

He and his wife, who had suffered six late-stage miscarriages including four sets of twins, used a surrogacy website to find a single mother of two on benefits who was willing to carry the baby they longed for. They made an informal agreement to pay her £10,000 in expenses.

But halfway through the pregnancy she decided she wanted to keep the baby and a judge ordered that the woman, who was also the biological mother, could keep the child despite her earlier promise.

The couple, referred to as Mr and Mrs W to protect the child’s identity, later relinquished their contact rights because they said it would be too difficult emotionally and that it was unfair for the baby to be split between two homes.

They allowed the surrogate, known as Miss N, to keep the £4,500 they had already given to her. But now Mr W must also pay £568 in child support every month as the biological father of the eight-month-old girl. ‘She cannot say, “I am keeping your child and now you must pay for it”,’ he said.

‘She has taken away our baby and now she is taking our money. To me, that is completely wrong. The CSA has made the decision as if we were a couple who had broken up, but our situation is unique.

‘We were not having a baby together, we had agreed for her to carry a child for myself and my wife. ‘I have written to Downing Street and my MP to call for a change in the law.’

Mr W said he now suspected it may have been Miss N’s plan all along to have a child with a wealthy man from whom she could claim child support over the next 18 years.

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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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