Thinking of having a surrogate baby? Take legal advice!

Would-be parents who are considering entering into private surrogacy agreements simply must obtain legal advice before they do so. This point was vividly made by one case in which a same-sex couple had to seek High Court recognition of their parental rights in respect of three babies.

Via an online surrogacy forum, the civil partners contacted three surrogate mothers who bore them children who were less than six months apart in age. The correct legal formalities under the Human Fertilisation and Embryology Act 2008 had not been complied with. A particular issue also arose as to whether more than £40,000 that the couple had paid to the surrogate mothers went beyond the reasonable expenses that they were permitted by law to receive.

The Court emphasised that babies cannot be bought and sold and was critical of the couple’s dishonest initial attempt to cover up the amounts of money they had paid. Taking on three infants so close in age also cast doubt on whether the couple had really thought about their welfare and the responsibilities involved in building a family.

However, the Court noted the views of the children’s guardian, who had praised the couple’s excellent parenting skills and the enormous pride and joy they took in the children. The couple had maintained warm relations with the surrogate mothers during their pregnancies and all involved had intended throughout that the couple would be the children’s parents.

In granting the couple full parental rights in respect of the children, the judge found that such an order was essential to promote the children's welfare. She was in no doubt that the surrogate mothers had acted altruistically and had not made any real financial gain out of having the babies.