H (A Child : Surrogacy Breakdown)

In a surrogacy breakdown, the court applies the ordinary welfare principle. The decisive question is which outcome, considering all circumstances, best serves the child. There is no separate legal approach for unconventional family structures.

A surrogate’s ability to withdraw from an unenforceable arrangement, and the statutory consent requirements for a parental order, do not determine the child’s post-birth welfare arrangements. The court must make an individual assessment. It may consider legal, gestational, genetic, social and psychological relationships, together with the welfare factors in the Children Act 1989. It should not impose a template drawn from a conventional separated-parent case.

H was born following an intended surrogacy arrangement between two intended parents and a married couple. The gestational surrogate and her husband withdrew from the arrangement before H’s birth. They were H’s legal parents, while one intended parent was genetically related to H.

After proceedings began, H spent time with both couples. Theis J decided that H should live with the intended parents. She ordered contact with the other couple six times yearly and made specific issue orders regulating day-to-day parental responsibility and travel.

The legal parents appealed the contact and parental-responsibility elements of the order. They argued that the order was effectively a parental order, that H should have two homes and four functioning parents, and that the orders were excessive or insufficiently precise. The central issue was whether the judge had erred in her welfare evaluation.

1. Appeal dismissed. The court reaffirmed the approach in Re N (a Child) [2007] EWCA Civ. 1053. In every surrogacy breakdown, as in other disputes concerning a child, the essential question is which outcome is best for that child after all circumstances have been considered. The Children Act 1989 welfare principle applies in full. Unusual family structures create no special rule and require careful focus on the child’s interests.

2. The statutory position under the Human Fertilisation and Embryology Act 2008 did not determine H’s living arrangements. A surrogate may withdraw from an unenforceable arrangement and withhold consent to a parental order. However, the statutory six-week protection relating to consent does not answer the separate welfare question after birth. Relevant circumstances may include legal and gestational parentage, genetic relationships and the way in which the arrangement arose.

3. The order was not equivalent to a parental order. A parental order would transform legal parenthood, end the surrogate’s rights and prevent a further application, whereas the judge’s order preserved the legal parents’ parental responsibility and provided for continuing contact.

4. The judge was entitled to reject a two-home, four-parent model. The evidence supported one secure home base, protection of H’s primary attachments and a contact arrangement that reduced the risk of conflict and undermining behaviour. Her assessment of the parties’ respective capacity to meet future parenting challenges was welfare-based, not punitive.

5. The court accepted that the specific issue orders about parental responsibility and travel could have been expressed more fully. That imperfection did not invalidate them. The parties were invited to supplement the arrangements, preferably through a parenting plan. The court also restrained the intended parents from generating further publicity about the case.

• Court of Appeal (Civil Division): dismissed the legal parents’ appeal from the contact and parental-responsibility aspects of the order.

• High Court, Family Division (Theis J): made a final child arrangements order for H to live with the intended parents, ordered contact with the legal parents on six occasions yearly, and made specific issue orders about parental responsibility and travel.