A surrogate mother has lost the right to care for the child she gave birth to for a gay couple she met online.

The woman met the couple online and entered into a surrogacy agreement with them in the UK back in 2015.

However, the woman and her husband changed their minds about giving up the child, during the pregnancy, despite neither one of them being a biological parent to the child.

When the child was born last April, the mother did not inform the gay couple for more than a week.

Under English law, the child’s legal parents are the surrogate mother and her husband. Australian law discussed further on in this article, is less decisive.

In the case heard in London, despite one of them being the biological father, the gay couple have no parental rights without a Court Order.

The gay couple launched legal proceedings seeking orders for the child to be cared for and parented by them to the exclusion of the surrogate mother.

They were successful in the High Court. The surrogate mother, adamant about keeping the child in her care, took her case to the Court of Appeal. By the time the appeal ruling was handed down, the child was 18 months old. 

Appeals court rules in favour of gay couple

In the judgment published in London this week, the three Judges who heard the surrogate’s case ruled the initial High Court decision had been correct.

Lord Justice McFarlane said the child’s needs “would be best met by living with a genetic parent”.

He also backed the High Court’s assessment of the surrogate mother and her husband, who had “embarked on a deliberate and calculated course of conduct” to prevent the gay couple forming a relationship with the child.

In the judgement, Lord Justice Mcfarlane stated that while the case was initially cited as testing novel family law principles, “the essential question in every case is, all things considered, which outcome will be best for the child?”

“The law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures, and indeed the more unusual the facts, the greater the need to keep the child at the heart of the decision, and to ensure that the interests of others prevail only where they are in harmony with the interests of the child,” he continued.

Read the full judgment here.

Australian full Family Court rules for the first time on the issue of commercial surrogacy parentage

In NSW, Queensland and the ACT, entering into overseas commercial surrogacy arrangements is illegal.

Surrogacy Australia president Robert Reith recently said that urgent change was needed to the laws around surrogacy to provide certainty to children and parents.

“The law absolutely needs a review and to be brought up to date with modern standards,” Mr Reith said. “It’s outrageous.”

His comments came in September 2017, after the full Family Court ruled for the first time on the issue of parentage of a child conceived in a commercial surrogacy arrangement overseas.

Three judges of the Australian court ruled a Melbourne couple, known as “Mr and Mrs Bernieres”, were not the legal parents of the child they had been raising for 3 years, despite Mr Bernieres being her biological father.

Commonwealth Family Law Act leaves it to state and territory legislation to determine the status of children born under surrogacy arrangements.

Previously, there was inconsistency as to whether individual judges would recognise the parentage of children born via commercial surrogacy arrangements.

The Victorian legislation, like all Australian states, does not recognise children born via commercial surrogacy arrangements.

According to the judgement:

“The unfortunate result of that conclusion is that the parentage of the child here is in doubt ...”.

“There is no question that the father is the child’s biological father, but that does not translate into him being a parent for the purposes of the Act. Further, the mother is not even the biological mother, and thus is even less likely to be the ‘legal parent’.”

Responsibility for care but not legal parents

The three judges, Chief Justice Diana Bryant, Steven Strickland and Judith Ryan upheld an earlier decision of judge David Berman, who gave Mr and Mrs Bernieres responsibility for caring for the child but not a declaration of parentage.

Mr Robin Smith, the barrister acting for Mr and Mrs Bernieres, said the only option for them was to apply for adoption but it would be a very difficult process.

“Unfortunately they have now fallen through the cracks of the state and Commonwealth legislation, which means they really don’t have any remedy,” he said.

While the couple could “make key decisions for the girl, including those relating to her medical care and schooling, because they had been given responsibility for her care, she would not necessarily be recognised as their child when it came to inheritance, and if they separated or divorced, they might not be able to be forced to provide child support,” he said.

Family lawyer, Stephen Page, reportedly said after the ruling, the full Family Court decision could impact on whether the Department of Immigration will recognise children born via overseas surrogacy arrangements as Australian citizens.

The impact of the YES! vote

It is estimated that about 250 babies a year are born overseas via surrogacy arrangements to Australian couples.

To date, but not exclusively, this has been to married heterosexual couples.

Many organisations negotiating surrogacy arrangements overseas will only deal with legally married couples. 

With the recent YES vote on same-sex marriage in Australia, there will be no longer be any impediment for same-sex couples wanting to become parents via surrogacy except to find around $150,000 to fund the exercise.

Sam Everingham from the international advocacy and support group Families Through Surrogacy says,

"It's a very much do-it-yourself model in Australia in terms of finding a surrogate and managing the journey."

Recognising the process is difficult and fraught with risk, Australians Paul Ryan and Gerard Edwards, created the Just A Baby App to help people find sperm donors, surrogates or even partners.

The app was launched in Australia at the Sydney Mardi Gras and has subsequently been released in the UK and the United States.

Changes to Australian law unlikely

In NSW, Queensland and the ACT, it is illegal for individuals to enter into commercial surrogacy arrangements.  

Increasingly it is also banned in overseas countries and there is a clear understanding that both sides of these arrangements are open to exploitation by intermediaries. India, Cambodia and Thailand have officially banned commercial surrogacy. 

Whilst there appears to be no suggestion of exploitation in the case of Mr and Mrs Bernieres, there is also no consideration given to the rights of at least one, potentially two other women involved in the process, an egg donor and a surrogate.

Although the practice is illegal, according to an ABC report in February 2017;

"There have been no prosecutions under Australian surrogacy laws in the last 10 years, but it's clear they are being flouted."

It's not a simple matter to change the law nationally to facilitate a practice (commercial surrogacy) that is currently illegal in some states.

The States and Territories have historically been responsible for registering births with the integral declaration of parentage.

Even with changes to the law to legalise commercial surrogacy, it's unlikely that the Commonwealth could take on the authority of registering births and parentage without the agreement of the states and territories.

Implementing the changes would be extremely time consuming and expensive.

It’s for these reasons and many other complex issues and ethical considerations I don’t expect change anytime soon.

Read: Since when has it been JUST A BABY?: New Tinder-like app for wannabe parents

This opinion piece was published by, Christine Weston
Founding Director and Creator of Divorce Resource

The information in this article is general in nature and should not be considered as professional advice. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.

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