Ms Justice Russell found that, although there had been no formal written surrogacy agreement, the woman led her long-standing gay friend (who desperately wanted children) into believing she would be a surrogate for him and his partner. Emails produced in court show the conversations from which it was apparent that this was the arrangement.
When the gay couple sought to complete the arrangement and have their daughter, the mother resorted to a smear campaign against the couple, both in court documents and on social media. This led to the ruling, the first of its kind in England and Wales, where Ms Justice Russell ruled that the daughter was “more likely than not to suffer harm” if she were brought up by her obsessive mother rather than by her father and his partner.
Whilst this case is perhaps more sensational than most, it does show the lack of clear law in this area, meaning that the gay couple in this case had to go to court to gain redress. Ms Justice Russell said that the case exposed the lack of a proper legal framework for surrogacy cases in the UK, unlike in the US where the process is much more formalised.
Although most surrogacy cases do complete amicably, any arrangement is not legally enforceable in the UK if the surrogate changes her mind.
Anyone considering entering into a surrogacy arrangement needs to think VERY carefully and consider all the possible outcomes.