Home News Family and Children Law Considering Surrogacy? There May Be Legal and Emotional Pitfalls

Considering Surrogacy? There May Be Legal and Emotional Pitfalls

Surrogacy arrangements may proceed without a hitch, but they can also be fraught with legal – and emotional – difficulty. A case in which a surrogate mother became so attached to the child she was bearing that she was unwilling to kiss him goodbye provided a distressing illustration of what can go wrong.

The surrogate mother agreed to undergo artificial insemination and to bear a child for a couple to whom she had been introduced by a friend. She acknowledged that it was always anticipated that, post-delivery, she would consent to a parental order by which the couple would be formally recognised as the child’s legal parents.

During her pregnancy, however, she became emotionally attached to the child. She felt increasingly undervalued by the couple and, on giving the child up soon after his birth, she was assailed by a sense of loss. She accepted that the child should live with the couple but was anxious to have regular contact with him. After a judge granted the couple a parental order, she appealed.

In upholding her challenge, the High Court noted that she had an absolute legal right to withhold her consent to the making of a parental order. Such consent as she had given was provided neither freely nor unconditionally. She had unwittingly expressed consent under palpable pressure in reliance on a promise that a further order would also be made, enabling her to have contact with the child.

The Court noted the increasingly bitter relations between her and the couple. It was, however, intended by all that the child should have contact with her whilst being brought up by the couple. A legal mechanism by which that could be achieved had yet to be decided upon. In the absence of her free and unconditional consent, however, the Court was driven to overturn the parental order.

30 January 2023
Last Updated
5 April 2023