A cautionary tale against unregulated surrogacy agreements
The case concerns a 2½-year-old child, J, born following an informal surrogacy arrangement between Mr and Mrs P (the applicants) and Ms T (the surrogate). She was born after an informal surrogacy arrangement between Mr and Mrs P (the intended parents) and Ms T (the surrogate). Home insemination was attempted using Mr P’s sperm. However, shortly after one insemination attempt, Ms T had unprotected sexual intercourse with another man. J was conceived during that time, raising doubts over paternity.
When a child is born through a surrogacy agreement, for the intended parents to be recognised in law as the child’s parent, and to end the legal parentage of the surrogate mother, they must obtain a Parental Order.
What Went Wrong?
Although everyone agreed J should live with Mr and Mrs P:
- There were serious problems with honesty during the court process.
- Early DNA testing was deliberately tampered with, to falsely show Mr P as J’s biological father when he wasn’t.
- The court later found that the paternal grandmother provided her own DNA sample instead of J’s, to produce a misleading result and make the test look positive.
- The court found Mr P knew about this deception and that the applicants had edited the report before being sent to the court, making deliberate attempts to mislead the court as to the paternity of J.
- Once it was confirmed through a court-approved DNA test that Mr P was not the biological father of J, Ms T refused to name the biological father, and so his identity remains unknown.
The judge was clear that the behaviour exhibited by all parties was serious and unacceptable, and that the ends do not justify the means. As there was no biological link between the intended parents and J, a Parental Order was no longer applicable, and so the Judge had to consider alternative orders that would provide Mr and Mrs P with parental responsibility to care for J. It was determined that an Adoption Order was the most appropriate order in these circumstances.
Why Was Adoption Still Allowed?
Despite the dishonesty, the judge focused on what was best for J’s life and well-being. The court looked at the following:
- J has lived with Mr and Mrs P from birth
- She sees them as her parents
- They are raising another child (K), and she considers K her sibling
- Ms T (the surrogate) freely and consistently consented to the adoption
- There is no known biological father for the court to contact
The judge decided that J’s reality is that Mr and Mrs P are her parents and that adoption was the only way to give her security, stability, and a permanent legal home.
The Judge’s Final Decision
- An adoption order was granted.
- No smaller order, such as special guardianship or child arrangements, would have been enough to protect J in providing the equivalent stability and permanency in her parents.
- The court kept J’s paternal family unnotified, because the biological father remains unknown.
- However, the judge made it very clear that the dishonest behaviour in this case should not be repeated in future.
Lessons to be learned
In the judge’s words, this case should be read as a cautionary tale about what can go wrong when people try to build a family without full honesty and legal safeguards. The judge warned that honesty is essential in surrogacy and family court proceedings, and cautioned that informal arrangements, especially via social media, are risky and can go badly wrong. It was made clear that future cases involving similar deception might not result in adoption being granted.
Advice from Rayden Solicitors
We are able to advise at any stage of a surrogacy process and recommend that advice is sought early. We cannot get involved in negotiating your surrogacy contract (this is not permitted in English law), but we can explain the legal process to become legal parents in the UK. If you are going through or considering surrogacy process and need advice, please get in touch and one of our specialist family lawyers will be happy to help.
