Judge warns agencies after surrogate mother dupes couples to keep babies· Judge rules that woman hands over boy to father· Compulsive desire to parent led to deception
Clare Dyer, legal editorWednesday October 31, 2007The Guardian
A high court judge has issued a stern warning to surrogacy agencies to carry out more stringent background checks after it emerged that a surrogate mother had deliberately duped two couples into believing she had miscarried their babies.
The woman, named only as Mrs P, entered into the surrogacy deals and conceived using sperm from the two fathers with the intention of keeping the two children for herself, the judge ruled. One of the children was nearly four years old when her father learned of her existence.
Mrs P already had three children of her own by different fathers but was motivated by "a compulsive desire to bear further children", Mr Justice Coleridge said. It was only when her own eldest daughter, 19, blew the whistle to the surrogacy agency, that the two couples learned the miscarriages had never happened.
The judge said surrogacy arrangements were now a feature of contemporary life. "When all goes according to plan they are a way of remedying the agony of childlessness. However, when the arrangements do not go according to plan the result, in human and legal terms is, putting it simply, a mess," the judge said.
He added: "As this case illustrates, women who put themselves forward for this role are very exceptional and may well have real unmet psychological needs of their own. When the arrangements go wrong the cost in terms of appalling emotional pain for the parties is huge.
"I would urge all agencies to ensure their checks into the background of all parties to these essentially artificial child birth arrangements are as thorough as they can be."
The elder of the two children born by surrogacy, a girl, was about to turn four when Mrs P's daughter told the agency that had set up the deal of her mother's deception.
Her true father , who had paid £850, and his wife decided not to apply to have her live with them but sought a court order for contact with her.
He later reached an agreement with Mrs P that the girl would be told at the appropriate time who her real father was and be allowed to see him.
The father of the second child, a boy, discovered just before his birth in December 2005 that there had been no miscarriage. He and his wife took the case to court, fighting Mrs P and her husband for the right to bring up the boy.
The judge said: "I make no secret of, or apology for, the fact that I have found this a particularly difficult case to decide." He ordered that the boy, by then 18 months old, should be handed over to his real father and his wife.
The ruling was handed down last July but the case was heard behind closed doors and the judgment was made public yesterday.
The judge said that the Ps had been good parents to the boy but had deliberately embarked on surrogacy with the object of having another child for their family and had never intended to hand the baby over. Mr P had had a vasectomy and the couple had investigated adoption and fertility treatment. All their actions were consonant with "a desperate desire to parent more children by fair means, or failing that, foul".
The question was which set of parents would be better for the boy's upbringing in the long term, and after a protracted legal battle, the judge chose the natural father, called J during the proceedings.
"When I confront that question and answer it I am driven to the conclusion, awful though it is from the Ps point of view, that he will thrive best in the Js' care," the judge said.
Mrs P and her husband, who were given the right to regular contact with the boy, launched an immediate appeal. But the appeal court upheld Mr Justice Coleridge's ruling and the Js took the boy to live with them in Leeds.
Mr Justice Coleridge said he had to resolve whether from the start the Ps had deceived the other two couples and never had any intention of honouring the surrogacy arrangements. This was important, he said, "because the children themselves are entitled to know in the future the factual background to their unusual conception".
He came to "the clear conclusion" that they "set out to deceive" both couples.
Surrogacy Child's best interests key in disputes
Surrogacy arrangements are legal in Britain and are regulated by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990. A surrogate mother may not be paid for the baby but may only be given "reasonable expenses" of undertaking the pregnancy and birth. The amount is not defined but is left to the surrogate and the commissioning couple to agree.
No surrogacy agreement is binding, so the mother may change her mind and decide she wants to keep the baby. If the commissioning couple disagrees, the case will have to go to court. In most cases the commissioning father and the surrogate mother will both be genetic parents, so they will have an equal claim. The courts will be reluctant to move a child who has bonded with the surrogate mother, but the decision will come down to where the child's best interests lie.