Marilyn Stowe Blog

Surrogacy: the mysterious case of the disappearing mother

We took a look at surrogacy in a recent post and this provoked a number of comments from reader KT who passionately argued that the surrogate mother was the “real” mother of the child, even though the child was the product of donor gametes. In English legal terms at least, KT is right: the surrogate mother is the legal mother of the child. The surrogate has absolute power over the child to whom she has given birth, even when she has no biological relationship with the child at all.

Explaining this position, Mr Justice Baker has referred to the comments of the Supreme Court’s Lady Hale in the case of Re G Children (2006). These described three types of parenthood:- biological, gestational (as in this case) and social/psychological. In the case of gestational parenthood, Lady Hale states it creates to a special bond between mother and child, including breastfeeding the child.

Compare and contrast this vision with surrogacy cases in India.

In our earlier story, we looked at Indian surrogacy from the point of view of the commissioning couple. Now let’s look at the situation from another angle – that of the gestational mother.

The commissioning parents in this case were a male gay couple who were married in a ceremony in Belgium. They were therefore regarded as civil partners for the purposes of English law. One of the couple is a British citizen. The intention of the couple was to reside permanently in the UK. They commissioned an Indian surrogate through a clinic in Hyderabad as a last resort to bear their child. The surrogate was not the biological mother of the child as, under the surrogacy arrangement, a donor egg was transferred into her together with the gametes of one of the couple who was therefore the biological father.

It was subsequently learned that she was expecting twins. The surrogate mother signed an Indian surrogacy agreement agreeing to give up the children to the couple after its birth. The total fees involved was $27k. The couple who intended to apply for a parental order in the English courts began experiencing problems relating to the English legal requirements before the children were born.

Under English surrogacy law, the birth mother may only give her consent to a parental order being made six weeks after giving birth and within six months of the birth. In this case, the commissioning couple couldn’t get a straight answer to their request that confirmation of the surrogacy arrangement would be forthcoming six weeks after the birth. Nevertheless, after the children were born, the couple assumed responsibility for the children and they were discharged from hospital within four days. The children were issued with birth certificates and subsequently, through the British High Commission in Delhi, with British passports. They received exit visas from the Indian authorities and the couple and their children were able to leave India only three weeks later to fly to the UK.

The mother never gave her consent. Shortly after the births, she simply signed a document indicating that the children could exit the country and she confirmed receipt of her expenses and that she was in good health, but that was all. The necessary consents for the purpose of English law never came. The reason? She disappeared. Her address turned out to be false. Despite hiring an enquiry agent, no-one recognized her, no-one knew her, all efforts to trace the surrogate mother failed. She vanished into a community of millions. But why? There was no answer. In response to the increasingly concerned couple who threatened to report the clinic, the clinic director apparently sent a one page piece of paper to the couple via DHL with an obscene gesture drawn on it.

The couple still went ahead and applied for a parental order in England, in order to be recognized as the legal parents of the children in English law, even though the mother’s consent had not been obtained.

The relevant law for the Court is to be found in section 54 of  the Human Fertilisation and Embryology Act 2008:

“(1) On an application made by two people (‘the Applicants’) the court may make an order providing for a child to be treated in law as the child of the Applicants if

a) the child has been carried by a woman who is not one of the Applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

b) the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and

c) the conditions in subsection (2) (8) are satisfied.

(2) The Applicants must be

a) husband and wife,

b) civil partners of each other, or

c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the Applicants must apply for the order during the period of six months beginning with the day in which the child is born.

(4) At the time of the application and the making of the order

a) the child’s home must be with the Applicants and

b) either or both of the Applicants must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man.

(5) At the time of the making of the order both the Applicants must have attained the age of 18.

(6)  The court must be satisfied that both

a) the woman who carried the child and

b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43) have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(8) The court must be satisfied that no money or other benefit (other than for the expenses reasonably incurred) have been given or received by either of the Applicants for or in consideration of

a) the making of the order,

b) any agreement required by subsection (6)

c) the handing over of the child to the Applicants or

d) the making of arrangements for the view to the making of the order unless authorised by the court.

(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her  artificial insemination.”

In other words, the couple had to satisfy the judge that they were a couple in a civil partnership; that one or both were domiciled in the UK; that the children were living with them; one of the couple was actually the biological father of the children; that the surrogate mother had agreed to the parental order or the court could dispense with her consent if she was incapable of giving it or could not be found; and that the payment made to the clinic did not infringe the provisions of s54 (8) above.

Mr Justice Baker meticulously dealt with each area on the facts. Some were relatively easy to determine, such as the domicile and status of the couple, but the contentious issues surrounding the biological parenthood of the children, the lack of consent of the surrogate mother and the amount of the payments made were not. Nevertheless he made the parental order, applying what we might overall call “the welfare test” since new regulations now incorporate some provisions of adoption law into surrogacy law. The most important of which is that in making a parental order a judge must take the welfare of the children into account as a paramount concern.

And so these children, who otherwise might have been condemned to a very uncertain future, were legally settled with their applicant parents.

This case is well worth reading, particularly if you are contemplating going off to India to enter into a surrogacy arrangement. It describes the pitfalls and the steps that need to be taken.

Overall, however, it leaves one deeply concerned about the fate of the surrogate mother. What could have happened to her? Why did she disappear? And where is she now? Why couldn’t she be traced? Her status in this country as the gestational mother would have been all powerful, protected and assured. Not so in India. One is left with the shocking feeling that she was simply expendable when she was of no more use. I sincerely hope that I am wrong.

The judge, however,  didn’t have to address those uncomfortable questions, though he dealt elegantly with those that he did, including the possibility of a DNA test on the children and the putative father. He didn’t order one. He said he was satisfied with the evidence before him. How, after all, was a potentially negative test in the interests of the children? He found the mother’s consent should not be required because she couldn’t be found. Applying the principles of previous cases, citing the judgment of Sir Nicholas Wall in X (Children) Re 2011 EWHC 3147, he also retrospectively sanctioned the payments finding they were made in good faith and not against public policy.

Surrogacy is a dangerous, risky business. There are plenty of what if?s for all involved. It seems to me that desperate couples don’t always worry about these what ifs or the poverty-driven decisions that are being made on the other side of the world. But on the other hand, it seems to me that our family judges will always strive to help the wholly innocent children who have no say about what has happened to bring them into this world and where they will live thereafter – even if that is thousands of miles away from their birthplace.

This case also answers the question posed as to why English law protects the surrogate or gestational mother and considers her the legal parent even if she isn’t the biological parent.

We just don’t know if the gestational mother in this case is  dead or alive. The children will never know if she was their mother and in any event will never have a mother figure at all if their biological mother was an anonymous egg donor as the judge was told. Is that ultimately in their best interests? Another sad question the judge did not have to answer.

Photo of Hyderabad by Kasuga Sho