A unanimous three-judge panel of the England and Wales Court of Appeal issued a decision on November 17 affirming a ruling by Justice Lucy Theis of the High Court Family Division that a gay male couple should have residential custody of a child born as a result of an unenforceable gestational surrogacy agreement they had entered with a married woman who sought to keep the child. Between: H (A Child); Re H (Surrogacy Breakdown),  EWCA Civ 1798 (Case No: B4/2-17/-0064/FAFMF (Nov. 17, 2017). Although the appeal had been presented as “involving novel issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Child Act 1989,” wrote Lord Justice Andrew McFarlane for the Court of Appeal, “on examination these issues fell away and the argument ultimately boiled down to the question of whether the Judge erred on her evaluation of the evidence.”
A and B, the gay couple, entered into a surrogacy agreement with C and D, a “heterosexual married couple” who had five children. C, the wife, had been a gestational surrogate twice before. The parties had met on-line in April 2015, and signed the surrogacy agreement in August of that year. C and A traveled to a clinic in Cyprus, where A’s sperm was used to fertilize a donated egg, which was then implanted in C. Thus, C would have no genetic relationship to the child.
The relationship between the parties deteriorated during the pregnancy, to the point where communication between them had ceased in March 2016. According to the opinion by Family Court Justice Theis, “At some point in late March 2016, C and D sought legal advice and decided that they were not going to hand over the child to A and B, as had been agreed between the parties as recorded in the agreement they signed in August 2015. At this time, A and B were seeking to establish contact with C, but with no response.” C gave birth to H in late April. Due to difficulties with the birth and aftermath, she and the child remained in the hospital until May 6.
The day before the birth, C and D’s then-lawyer wrote to A and B, telling them that C and D were not prepared to follow the surrogacy agreement and would not be giving their consent to a parental order on behalf of A, the child’s biological father. Although correspondence between the attorneys occurred for ten days following H’s birth, A and C were not informed of the birth until May 10, by which time C and D had already registered the birth with the name they had chosen rather than that chosen by A and B. A and B then filed suit, which resulted in arrangements being made for them to have contact with the child, which ultimately became a “shared care arrangement” up to the time of the hearing in Family Court.
Justice Theis appointed a Guardian for the child in the context of the hearings and hear testimony from all parties. Because C and D were not willing to cooperate with a parental order, they are considered the legal parents of H, as birth mother and her spouse at the time of the birth. Surrogacy agreements are not enforceable under English law. The intended father cannot obtain a parental order designating him as the legal parent in such a case without the cooperation of the birth mother and her spouse, if any. The main question for the court was whether the child should reside with C and D, or with A and B, in light of the history of the child’s conception and the subsequent bonding through the shared care arrangement, and A’s claims as a biological parent.
C and D’s lawyer argued that “as a matter of law, C and D had a right ‘to change their minds and keep H.’,” wrote Lord Justice McFarlane. “It is undoubtedly correct that a surrogate mother has the right to change her mind,” he wrote, but noted that the lawyer “wisely withdrew from the submission that such a mother also had the right to have her own way about where the child should live. She was also forced to concede that, while the six week ‘cooling off’ period protects a mother in relation to the important issue of consent to a parental order, it tells one nothing about what the best welfare arrangements for the child will be after birth. That will depend on the circumstances, which will include, in addition to the factors in the [Child Act] 1989, sec. 1(3) checklist, the child’s gestational and legal parentage, his or her genetic relationships and the manner in which the intended surrogacy came about.”
The Guardian appointed for the child testified that A and B were better placed to meet “the more complex emotional needs of a child born in these circumstances” than were C and D. On this issue, it appeared that A and B were open to allowing H to have a relationship with C and D, but C and D were not disposed to encourage a relationship with A and B. Both couples were seen as capable of meeting the child’s “ordinary physical, emotional and educational needs.” The Guardian recommended that H should live with A and B and have visiting contact with C and D, ultimately recommending that such contact should take place six times a year until the child’s 2nd birthday, subject to being increased at that time depending how the relationship developed.
Judge Theis accepted this recommendation, finding that it was best for H to live with A and B, with the recommended visiting schedule for C and D. As described by Lord Justice McFarlane, “The Judge therefore concluded that it would be best for H to live with A and B because (1) H’s identity needs as a child of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet H’s day-to-day needs in an attuned way, (3) A and B were best bale to promote the relationship with C and D, having remained positive about their significance despite the difficulties, and (4) C and D were unlikely to significantly change their views about A and B.”
The Court of Appeal rejected C and D’s argument that placing the child with A and B was “equivalent to the making of a parental order,” pointing out that such an order “leaves the surrogate with no rights, and no right to apply to court. It would not provide for ongoing contact.” Justice McFarlane observed that Justice Theis had explicitly recognized the ongoing role of C and D as legal parents of H. He also rejected the argument that the Family Court was “obliged to strive to provide H with two homes and four functioning parents,” since it was “obvious that it was not likely to be in H’s interests to have more than one secure home base, and one couple who could be clearly identified as parents.” The court rejected any argument that the Family Court’s decision was “punitive to C and D” for having abrogated the surrogacy agreement and behaved poorly towards A and B, finding that the judge’s concern was “relating less to what had happened in the past and more to the respective couples’ ability to respond,” and that she had repeatedly “acknowledged the love that all four adults felt for the child, but she was clear that one of the couples was better placed than the other to negotiate the challenges of the future.”
The Court of Appeal concluded its opinion with observations on two matters. “Firstly, we note that surrogacy is a complex area, ethically and legally, and that there are no internationally agreed norms,” wrote Justice McFarlane, endorsing Justice Theis’s observation that it would be desirable for the government to enact “a properly supported and regulated framework to underpin arrangements of this kind.” The lack of any legal status for surrogacy agreements is a continuing source of difficulties, since the legal template for dealing with custody disputes between divorcing parents does not easily fit the situation when surrogacy arrangements break down during pregnancy. And, the court devoted a final paragraph about A and B having “most unwisely and unaccountably” resorted to social media to discuss their situation, as to which the court “made an order restraining A and B from generating further publicity about this matter.” Preserving confidentiality in contested custody cases is generally deemed to be in the best interest of the child.
The end result, which brought some startled comment from the gay press in the U.K., is that the surrogate, who has no genetic relationship to the child, continues, together with her husband, as legal parents, while the child will live with A and B as, in effect, de facto parents. The surrogate and her husband will have continuing contact with the child through the visitation order and, still to be sorted out in full, there may be some restrictions on where and when A and B can travel with the child outside the country. The court’s call for the government to establish an appropriate statutory legal framework to govern such situations is heartfelt.