A woman who agreed to be a surrogate for a gay couple in the UK after a 30-minute meeting in a fast food restaurant and then decided she wanted to keep the baby has won custody of the child.
The surrogate has no biological link to the child, created using the sperm of one of the gay men and a donor egg from the US. However, handing down a decision on the ensuing custody battle in London’s High Court, Ms Justice Russell said the woman was ‘better able to meet’ all the baby’s emotional and physical needs. The judge added the gay couple had been ‘manipulative and dishonest’ and ‘at the very least, potentially exploitative’.
The very same judge ruled in favor of a gay couple keeping three babies born through surrogates in the same week as she handed down this verdict.
Surrogate mother awarded custody because ‘incapable of consent’
The case has brought to light the problems of the largely unregulated surrogacy landscape in the UK, which allows for altruistic surrogacy, but not commercial surrogacy.
The gay couple had met the woman through a Facebook group and agreed to pay her £9,000 for the service. Under UK law, surrogates can receive up to £15,000 in expenses incurred during the pregnancy.
However, the surrogate has learning difficulties and Ms Justice Russell said this meant she had been incapable of ‘consent[ing] freely or unconditionally’ to the surrogacy.
Under UK law, the surrogate must agree to a parental order before the intended parents can be legally recognized as such. In this case, the surrogate did not agree to the order and has been bringing up the child at the home she shares with her partner and their young son.
Biological dad given minimal visitation rights
While the surrogate has been granted custody, the judge granted the gay couple contact with the child for one weekend every eight weeks. Parental responsibility has been legally given to the surrogate, her partner, and the child’s biological dad.
The case suggests that UK surrogacy law is in need of reform. It is becoming generally more difficult for gay couples to start families through surrogacy owing to the expense in developed countries, and a number of developing countries banning international surrogacy. Surrogacy law is also currently under review in Australia.