M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post. Read judgment here
H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life. It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place.
S contended on the other hand that she and H had entered an agreement that excluded B – that H would be, in effect, a sperm-donor and that she would take on the role of M’s main parent and carer. She described herself and H as being like two heterosexual parents that have a child and are separated. Through out these proceedings S “vociferously rejected” B playing any parental role in M’s life. In the judge’s words,
S has sought to present herself throughout the proceedings as a victim and someone whose “rights” as a mother and as a woman have been trampled over and abused. She claims, in terms, that H and B are attempting to remove her child, from her breast, in a cruel and calculated attempt to build a family and that she is being discriminated against and victimised. She describes H and B in an openly disparaging and dismissive way saying that they are not like a very well known celebrity couple (who she names) who have had children by surrogates; “They are not a gay couple having a child”.
As Russell J reflected,
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 conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child.
At the outset, the judge called for “a properly supported and regulated framework for arrangements of this kind”, but whether legislation would spare Family court judges of this type of dispute is a matter for debate. Indeed, the existing legislation governing surrogacy arrangements was declared inapplicable in this case because S did not consent to a parental order or to having acted as a gestational surrogate. So the only applicable law was that relating to parental responsibility and residence and contact.
At the time of this hearing, M lived for most of the time with her mother and H and B applied to the Court to change that arrangement so that M would live with them; this was supported by M’s guardian. The standard of proof in all cases involving the welfare of children is the balance of probabilities as set out by the House of Lords in the case of Re B (Care Proceedings: Standard of Proof)  UKHL 35,  2 FLR 141, confirmed by the Supreme Court in Re S-B (Children) UKSC 17. The test for the welfare of the child in such circumstances is not a difficult one:
Put very simply, in which home is he most likely to mature into a happy and balanced adult and to achieve his fullest potential as a human? (Re N (A Child) EWCA Civ 1053)
In fact in the case of N, the court at first instance had found that the “surrogate” mother had deliberately embarked on a path of deception, driven by her compulsive desire to bear a child or further children, and that she had never had any objective other than to obtain insemination by surrogacy, with the single purpose of acquiring for herself another child.
In the instant case, given her previous history regarding her other children, there was a significant risk that S would remove the child M to Romania, and therefore H and B sought a prohibited steps order preventing S from removing M from the jurisdiction (without their express written permission) during her minority.
Some time during the run up to this litigation it came to the attention of M’s guardian that someone, most likely an acquaintance of S, had posted the following tweet:
Wealthy gay couple force child from good mother’s breast setting bad precedent. Starts Mon 19Jan 10am High Court RCJ, court 35
Whilst S denied any part in this tweet, the judge found her involvement with it entirely “in keeping with her conduct of the case” during which she sent emails copious emails to the court, to the President of the Family Division and pursued an appeal against the order made on the 1st October 2014 apparently against legal advice. The applicants’ solicitor sent an email to the person who had tweeted requesting him to take the tweet down and informing him of their objections to him tweeting about this matter.
Furthermore, as the judge observed, S did not assist her case by repeatedly making allegations, wholly unsupported by any objective evidence, about H and B’s relationship and lifestyle.
About the former she repeatedly relied on stereotypical views on the nature of their relationship suggesting that she knew “they have an open relationship, what gay people call it, have sex in groups.” There is no foundation to this claim which I consider to be a reflection of her deliberate attempt to discredit H and B in a homophobic and offensive manner.
From what she saw of S, Russell J concluded that there was never “the slightest indication of a cowed, submissive or victimised person”. On the contrary she conducted herself in a very confident and most assertive manner throughout.
She has sought to impose her will on the court and manage the proceedings. The need to express her breast milk while genuine was used to interrupt and disrupt the evidence of the Applicants.
For this and other reasons from the evidence before the court, the judge concluded that S had deliberately misled the applicants in order to conceive a child for herself rather than changing her mind at a later date. Having at first encouraged H to be involved S was already trying to exclude H not long before M was born from involvement with the birth and with the child.
S has repeated[ly] used the emotive image of a child being removed from her mother’s breast and refused breast milk as part of her attempts to gain sympathy and opprobrium for the Applicants and the court. It is not in the interests of any child to use breast-feeding, or co-sleeping, to curtail that child’s interaction with another parent or to deny her an opportunity to develop a healthy relationship with that parent. I have little doubt that that is what S set out to do, at least in part, and it was an action which was contrary to M’s best interests and emotional well-being.
S’s disobedience of previous court orders regarding M gave the lie to any suggestion that she was the intimidated martyr to motherhood that she would like to have her supporters believe.
The Court’s Decision
Russell J had the difficult task of deciding what would be in the best interests of a child of fifteen months who was as yet unable to express her wishes. However she was able to take into account the mother’s conduct and was able to judge S’s ability to parent M based on recent history. That history suggested that M was “more likely than not” to suffer harm;
to continue to be taken to the GP and to hospital at times when it is not necessary in furtherance of S’s determination to control M’s contact with H and B or in respect of contact or any other dispute she may pursue over M with H in the future. It is likely that S will present H and B in a negative way to M and give her limited opportunity to understand the history behind her conception and of how she came to be here; nothing in S’s conduct of her case can offer any assurance to the court that S is capable of doing that for M in a balanced way that is free from S’s own agenda.
Even though at the time of the hearing the judge acknowledged that S was able to care for M well physically, there were already grounds for concerns about her mother’s “over emotional and highly involved role in this infant’s life.”
Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body. M spends most of her time with her mother who does not set out any timetable for returning to work, as S would have to, to provide for M and for herself. There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness.
While to move a young child from her mother was a difficult decision and was one which the judge made “with regret”, she had to conclude that H was the parent who was best able to meet M’s needs both now and in the future. It was he who has shown that he has the ability to allow M to grow into a happy, balanced and healthy adult and it is he who can help her to reach her greatest potential.
It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M’s identity and place within her family.
Orders made accordingly.
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