Judge rules surrogate mother could give baby a better home than gay couple
A vulnerable surrogate mother agreed to have a gay couple’s baby after they spoke on the internet and met just once in a fast food restaurant.
But she got cold feet after being implanted with frozen eggs and refused to hand over the boy after his birth.
In a unique decision, a top family judge has now ruled that the baby should live with his birth mother – even though they are not genetically related.
Neither the woman or the two men have been named to protect the identity of the boy.
Ms Justice Russell ruled the mum could give the boy a better home than the gay couple, even though one of them is his biological father.
The “genetic ties” between the one-year-old boy and his dad was “not a trump card”, she ruled.
They had reached an “informal, ad hoc” surrogacy deal with the mother after finding her on a Facebook surrogacy forum, the court heard.
She signed up to “hosting” their baby at a railway station fast food outlet after a face-to-face meeting with the couple lasting less than two hours.
After much negotiation, they eventually agreed to pay her £9,000 for bearing their child, saying that was the most they could afford.
Suffering from learning difficulties – and described as “naive and gullible” by her own family – she made a stark contrast with the well-educated and professional couple.
A medical expert said she had “created a fantasy” in which she imagined going on a “journey” with the baby and “creating some sort of alternative family”.
The couple had already had fertilised eggs frozen and the woman was flown out to Cyprus to be implanted with them at a clinic there.
But even before the procedure she was having second thoughts and, after deciding to keep the baby, she told the couple she had miscarried.
They only discovered she was still pregnant shortly before the birth and demanded that she hand over the child.
The judge said that, under English law, the mother is the boy’s legal parent and there could be “no question” of changing that.
Her right to be recognised as the child’s mother was “unconditional” and could only be given up if she freely gave consent.
The mother said she felt “used” by the couple and that their treatment of her during her pregnancy was “unsympathetic, demeaning and demanding”.
But the couple insisted they had “behaved impeccably” towards her and spoke of their “sense of victimhood and grievance” at being denied their own child.
It was only under cross-examination in court that they “even began to acknowledge that their conduct towards the mother was not beyond criticism”, said the judge.
Despite her difficulties, the “forthcoming and transparent” mother was better able to provide the boy with a warm and welcoming home, she ruled.
She had “demonstrated commitment, willingness and ability” to give the little boy – who was born with medical problems – what he needed to thrive.
“The warmth of each family itself is where the real difference lies, not just within the home itself but in the warmth that extends beyond four walls to others”, said the judge.
The couple’s home “did not appear particularly child-friendly” and the genetic link between the boy and his father, whilst relevant, was “not a trump card”.
Ms Justice Russell ruled that the boy should live with his mother but will have contact with the couple every eight weeks as he grows up.
His birth certificate will also be changed so that he will bear his biological father’s surname.