Judge warns of surrogacy pitfalls

Posted: 2nd October 2012

A High Court judge has warned of the pitfalls of foreign surrogacies after the Indian mother of twin boys 'disappeared' before giving her formal consent for them to be brought up by a British gay couple.

The male couple, who are civil partners, contacted a clinic in Hyderabad, India, to find a woman willing to carry and bear a child for them. However, when their efforts to obtain the mother's written consent for them to raise the children failed because they were unable to trace her, the couple had to apply to the High Court Family Division to have the babies formally recognised as their children.

Granting the couple parental rights over the boys, Mr Justice Baker said that the mother's agreement was 'not required' because she could not be found. He also retrospectively authorised the payment of about £17,000, plus expenses, made by the couple to an Indian surrogacy clinic, saying that he was satisfied that they had acted in good faith and in accordance with public policy.

However, sending out a warning to prospective parents planning to use a surrogate, he added: ‘In future cases, applicants and their advisors should learn the lessons of this case and take steps to ensure that clear lines of communication with the surrogate are established before the birth to facilitate the giving of consent.’

Under a surrogacy arrangement with the Indian clinic, a donor egg was transferred into the surrogate mother, together with the gametes of one of the couple, who was therefore the twins’ biological father. The couple returned to Britain with the children three weeks after their birth but, since then, all attempts to contact the surrogate mother to obtain her consent had failed.

Observing that ‘the act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life,’ the judge waived the requirement to obtain the mother’s consent on grounds that the couple had taken 'all reasonable steps' to contact her but that there was 'no realistic hope of finding her'.

He concluded: ‘I accept that it is not the applicants' fault that they found themselves in this position. I am satisfied that they reasonably believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.’