Cambridge Family Law Practice

The High Court has rejected a woman’s bid for a role in the life of a child born through surrogacy who is a sibling of her own child.

The case concerned two children born as a result of separate surrogacy arrangements. The father of both was referred to in the judgement as ‘B’.

In 2017 he met a woman referred to as ‘A’. A and B were not in relationship, but decided to have a child together because both wished to be parents. IVF treatment using each party’s gametes was unsuccessful and it emerged that donated ova would be required. The pair therefore travelled to the United States, where eight embryos were created using B’s gametes and donor eggs. Because his gametes had been used, B held legal control over all the embryos. One was then transferred into A. B formally consented to this, agreeing that he and B would be parents to any resulting child.

The implantation was successful and A gave birth to a child referred to as ‘X’, who is now three years old. A and B co-parent X at their respective homes. During 2020, A and B discussed having a second child. A was initially keen, pressing B for a decision but also acknowledging that he might decide to have a further child with someone else, insisting that she had been fully aware of this possibility and that she:

“…had agreed to before embarking on this part of our journey…they are your embryos to do with as you please”.

In response, B suggested mediation, saying this would also allow them discuss other problems they’d been having. However, the pair were unable to resolve their difficulties. B wrote to A:

“I am…heartbroken that the opportunities we may have had to talk about having a second child together have been lost. It was more than a hope of mine that we could work out our issues through talking and maybe see if that was possible. I understand … that you have ruled out having a second child with me and I have come to accept this.”

B then began to consider having a second child as a single parent. He pursued this plan with a fertility clinic in the US, creating new embryos with a second egg donor.

Meanwhile, A applied in court for a child arrangements order that would allow her to relocate with X to a different part of the country. In response, B explained his desire to have another child with A, but:

“[A] made it clear to me that she did not want to and … I wrote to [A] and said that I was very sad but I accepted this.”

He was now actively considering the conception of a second child with another surrogate, he explained, and said he would discuss how this should be presented to X when the time came.
However, he did not tell A that a surrogacy arrangement was already underway, with a women referred to as Mrs G, using one of the embryos created back in 2019. A only found out when she was accidentally copied into an email from the fertility clinic. B apologised and the two discussed how to move forward and explain the situation to their child X.

Social workers intervened in the case, working with A and B to develop a narrative concerning the birth of the new child that would be appropriate for X. The social workers did not support A’s plans to relocate and the pair instead agreed to attend family therapy to work through the situation. These appeared to be successful. A wrote to B that:

“…I think it’s wonderful that we met with [mediator] yesterday and we were able to agree what to say to [X] about his baby brother. I was very worried about how we would explain this very complex situation to him…We agreed to say to [X] that we are going to be welcoming a new baby into our family – his brother and that he was going to be a special baby just like him. … We agreed that we wouldn’t expand upon that messaging and to keep it very simple. As such no mention of the surrogate. …I feel that this is very important. We need to make sure [X’s] wellbeing is a priority … it is a difficult situation where [X] will have a brother with the same father as him, but his brother will not have a mother whereas [X] has a mother. It is highly unusual family situation…’”

Later, A declared via her solicitors, that she wanted to take an active role in the life of the new baby, ‘Y’, saying she wanted B to:

“…agree to her having a full relationship with the new baby as his mother.”

She believed both children would benefit from this. She even offered to fly to the US to be present Y’s birth. A added that if B did not agree to this, she would apply for a child arrangements order formalising her role as Y’s legal mother.

B’s solicitors responded that this would not be possible because she had no entitlement to the legal status of parent in the life of Y, under either the Children Act 1989 or the Human Fertilisation and Embryology Act 2008. Nevertheless, A’s solicitors still sought reassurance from B that he wouldn’t make any major decisions concerning Y without her consent.

A then applied for Y to be made a ward of court:

“…pending full consideration of arrangements for the child.”

She insisted that:

“I wish to have a full role in [Y’s] life as a mother to ensure that [Y] has a full loving relationship with two parents, just as [X] does.”

Her application came before Mrs Justice Theis in the High Court. By this point, A had decided to withdraw her application for Y to be made a ward of court, but still sought a child arrangements order giving her a formal role in the life of Y.

Withdrawing an application for wardship requires the permission of the court and the Judge granted A this. She also refused her permission to pursue her application for a child arrangements order concerning Y, explaining:

“Having stood back, viewed the wide canvas and considered A’s application … I have reached the conclusion that leave should not be given. … A seeks to maintain her position to be treated as Y’s mother for the reasons …There is limited, if any, recognition by her of the different circumstances and consequences of the conception of X and Y. It is, in my judgment, a wholly unrealistic application that fails to have any regard for the reality of the position, any recognition of the difference in the circumstances of conception between the two children and their different legal status as between A and B.”

She added:

“Bearing in mind the circumstances of the litigation to date, there is a real risk that if leave [to pursue the application] is given, even if it sought to limit the issues, there will be disruption to Y’s life through the continued pressure and impact on B as Y’s main carer in circumstances where there remains…little or no understanding by A of the different legal structures that exist for each X and Y.”

The Judge concluded:

“…the issues raised are better dealt with by way of mediation and therapy…”

Jeremy Ford, one of the partners here at Cambridge Family Law Practice, observes: “This case highlights the complex intertwinement between legal parenthood and informal agreements between co-parents and intended co-parents. Whilst X and Y are siblings, their respective legal parenthoods are different. How that difference plays out in practice in the children’s lives will depend on relations between X’s parents, I suspect.”

Read the full ruling here.