The Regulation of Surrogacy Agreements

Two surrogacy cases have hit the national headlines in the past week, adding to the increase of reported cases in this highly complex area of family law. The number of emerging cases perfectly demonstrates the diversity of modern families.

In H v S (Surrogacy Agreement) the high court ultimately decided that it was in a 15 month old girl's best interests to live with her gay father and his male partner, rather than with her mother. The biological father and mother were in dispute over what they each said had been the terms of a pre-conception surrogacy agreement.

In UK law, surrogacy agreements are unenforceable and so neither party could rely on what they each said were the original terms of the agreement. Like in all family cases concerning children, therefore, this case was concerned with the living and contact arrangements which would serve the child's best interests most effectively.

It was decided eventually that the father was the parent who was in a better position to meet the child's needs and so an order was made for the child to live with him, with a reciprocal order for her to spend time with her mother.

One of the interesting things to emerge from this case was the comments from the judgement of Ms Justice Russell, who said:

Very sadly this case is another example of how agreements between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, led to an increase in these cases before the Family Court.

Experts have called for UK surrogacy laws to be changed to reflect modern society. At present there is little to no framework on the way surrogacy agreements are regulated and so the fear is that cases such as these will increase and cause further hardship for parents and children.

In a slightly more unusual and indeed unique case M v HFEA, a mother is seeking permission to have her dead daughter's frozen eggs implanted in her womb so that she can carry and give birth to her own grandchild, once fertilised by a sperm donor.

In this instance it would be the carrying mother, i.e. the grandmother who would be the legal parent of the child.

Despite it being her daughter's wish to do so, the mother has been refused permission by the Human Fertilisation and Embryology Agency (HFEA). The judgement has not yet been given in this case but it will no doubt create further interesting developments in this rapidly developing field of family law.

There are many complicated and important legal issues to consider when embarking on a planned surrogacy or other artificial conception. It is essential that you speak to a family law expert to assess your options at the outset in order to avoid complications for you and your children in the future.

For an initial, free of charge, no obligation discussion, please call us on 0113 201 4900 or email

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