This case involved an agreement concerning the conception and parenting of a baby, M.
The biological father (H) and his same sex partner (B), argued M's biological mother, S, agreed to be a surrogate, with H and B co-parenting M, and S playing a role in M's life. S argued she and H agreed to have a baby, to B's exclusion, with her as main carer, and there was no surrogacy arrangement. H and B applied for parental responsibility (PR) and child arrangements orders regulating residence and contact. S cross-applied for residence and contact. Private children law applied, as S did not consent to a parental order or having been a surrogate. The court's primary concern was M's welfare. Its function was not to decide on the nature of the agreement. H and B were granted PR. Though B was not a biological parent, he was a significant person in M's life who had assumed a parental role. Russell J found that S deliberately misled H and B. At first, S encouraged H's involvement, but subsequently tried to exclude him and disrupt his contact with M, including: • Ensuring H was not at the birth. • Omitting H from the birth certificate. • Naming M without reflecting any paternal family names. • Using breastfeeding and co-sleeping to limit contact. • Repeatedly taking M to the GP or hospital unnecessarily. • Refusing to hand M over to B. Russell J transferred residence to H and B, with frequency of supervised contact with S to be agreed between the parties. M was at risk of harm if living with S, given S's negative estimation of H and B and their relationship, and her repeated taking of M to medical professionals unnecessarily. S could not prioritise M's needs above her own. This case warns of the dangers of entering private surrogacy agreements, which are currently not subject to regulation, and reminds practitioners that clients must behave as constructively as possible in private children disputes, putting the child's interests first. Case: H v S (Surrogacy Agreement) [2015] EWFC 36, 30 April 2015
