Surrogate Tries To Keep Baby, Court Doesn’t Care About Genetics

This case would have been much less of a struggle in the US...

In the surrogacy world, one of the worst case scenarios for intended parents is that the surrogate will change her mind and try to keep the baby. Although statistically, it is actually more likely that the intended parents will change their mind, and try to abandon the baby. Andrew Vorzimer, a Los Angeles-based assisted reproductive technology (ART) law specialist, has been keeping track since 1979. Of over 148,000 surrogate deliveries, 13 gestational surrogates and 25 traditional surrogates have sought to change their minds. By contrast, 89 intended parents have sought to change their minds.

But the worst case scenario does happen.  And when it does, families have to rely on the courts to navigate a novel area of the law.

Last week, a British court ruled against a surrogate who attempted to keep the baby she carried for a gay couple. That’s at least some good news. However, the court muddied the waters.  It granted the surrogate limited parental rights to the child, and ruled that the surrogate would be entitled to six visitations with the child per year.

In this case, the child had no genetic relation to the surrogate at all. To conceive the child, one of the men’s sperm was combined with the oocyte (eggs) of a Spanish donor. The surrogate then underwent in vitro fertilization in Cyprus.  (The Greek part, not the Turkish part).

Genetics Do Not Matters in the UK. This case would have been much less of a struggle in the US, where many states (like California, Nevada, and Illinois) recognize parental rights based on the intent of the parties. American courts also tend to find a significant legal differences between traditional (or genetic) surrogacy – where the surrogate is genetically related to the baby she carries – versus gestational surrogacy, where the baby has no genetic relationship to the surrogate.

Not so across the pond. There, surrogacy agreements are unenforceable, and a lawyer who negotiates one may even face criminal charges.

When I spoke with Natalie Gamble, an expert in the United Kingdom’s law on assisted reproductive technology, she explained that “it makes no difference under UK law whether the surrogate is a traditional or gestational surrogate – she is the legal mother.” In fact, a similar case happened last year, where a gestational surrogate in the UK changed her mind. In that case, the court really confused things. It ruled that the surrogate would keep custody of the baby, despite having no genetic link to the child.

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This case, and the one from last year, had similar facts. In both cases, a gay couple found a surrogate online, IVF occurred in Cyprus, and then, during the pregnancy, the relationship broke down between the surrogate and the intended parents. In both situations, the surrogate did not even tell the Intended Parents when the baby was born.

Best Interests of Whom? Gamble explained that UK courts do not give priority to the interests of the parents, or whom is genetically related to the child. When these disputes arise, the court decides who a child will live with, among those with claims to parenthood, based on the best interests of the child. “Every case is decided on its own facts, and the family court has awarded care to the surrogate in some cases, and to the parents in others.” Because the analysis is so fact specific, Gamble notes that this ruling does not provide precedent for future surrogacy disputes.  The only principle is that the welfare of the child is paramount.

Legalizit. Hopefully, the issue of surrogacy will be taken up by the Law Commission. That’s a vaguely named independent British body that reviews and then makes recommendations to improve areas of law. The case I discussed above is actually the fifth case of its kind to make it before a UK court. So clearly, this is an area where some consistency is needed. Hopefully, we don’t see a sixth case before the Law Commission has a chance to recommend a change be made to the status of surrogacy. Come, on Law Commission. Stop paying attention to royal engagement news.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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