The case of H v S (Surrogacy Agreement) [2015] has received widespread publicity over recent days. Ms Justice Russell ordered the daughter of a surrogate mother to live with a same sex couple, one of whom is the biological father of the child.

In this case the mother argued that this was not a case of an agreement between the parties for an assisted surrogacy conception of a child, rather the Applicant father was simply a sperm donor to a mother who would parent alone. Commenting on the agreement Ms Justice Russell expressed sadness at the risks such "agreements" pose and can go desperately wrong.

Surrogacy Law

The law governing surrogacy agreements in England and Wales is pretty much non-existence, as Ms Justice Russell stated in her judgment 'the lack of properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.' However, as Ms Justice Russell rightly emphasis in her judgment, the legislation which governs altruistic surrogacy had no part in her decision as the mother simply does not consent to such a parental order. Rather, Ms Justice Russell had to focus on the welfare of the child being her principle concern.

"It is not the function of this court to decide on the nature of the agreement and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood."

The mother's behaviour

In her Judgment, Russell commented on and criticised the mother's behaviour. Russell stated that the mother displayed a "deliberate attempt to discredit H and B in a homophobic and offensive manner." Throughout the five day trial the mother had made offensive remarks, suggesting that homosexual couples are both promiscuous and adulterous.

Additionally, Ms Justice Russell suggested that the mother used her need to breast feed to disrupt proceedings, which she did markedly less frequently during her evidence.

It was also found, on the balance of probabilities that the mother informed the parents of the step-father that he was indeed gay, something which they were not aware of, which caused him great distress and upset.#

The Decision

Ms Justice Russell emphasised that moving a young child from her mother is a "difficult decision" however concluded that it was the Applicant father and his partner who would be best able to meet his daughter’s needs. Contact between the biological mother and the child would take place at a minimum of twice a week, initially on a supervised basis. Ms Justice Russell also put in place a Prohibited Steps Order, preventing the mother from removing the child from the jurisdiction without the consent of B and H, until she reaches the age of sixteen.

The Significance of H v S (Surrogacy Agreement)

Arguably this case is significant for a number of reasons. Firstly it highlights, again, the risks that informal agreements place on all the parties involved. This case will again ignite the discussions surrounding whether or not we should have formal laws within England governing surrogacy. It is thought that each year over 2000 children are born to surrogacy arrangements.

Additionally the case demonstrates that a birth mother will not necessarily be the person to care for the child if it is not in the child's best interests to do so. A Judge will always put the child’s best interests as the paramount consideration when determining the matter.

If you require expert family law advice regarding your child arrangements, do not hesitate to call our family helpline on 08000 147720, email or text LAW to 67777 to arrange a free thirty minute consultation in any of our ten offices across West Yorkshire.