A recent case involving a father in a same sex relationship and a mother who had disputed that she had acted as a surrogate has highlighted the importance of obtaining legal advice and formalising any agreements entered into.
The case of H v S (2015) involved a child born in January 2014 as a result of artificial conception and the result of an agreement. The substance of the agreement was however contested between the parents. An agreement prepared by a suitably qualified solicitor had not been prepared in this case.
The child’s Father (‘H’) was in a long term, committed relationship with a male partner (‘B’) although they were not married or in a civil partnership. The couple dearly wanted a child and H entered into an agreement with the child’s Mother (‘S’), a longstanding friend, to effectively act as surrogate. H advised that as part of the agreement, S would play a role in the child’s life but that H and B would co-parent.
S however argued that B had been excluded from the agreement and that it was agreed that H would act as a sperm donor, with S being the main parent.
There were competing applications issued in Court resulting in costly litigation spanning almost twelve months.
H and B requested that the Court order that the child live with them. Their request was supported by the child’s guardian. S similarly wanted the child to live with her.
The Judge hearing the case highlighted that where there were two competing care regimes, it must be considered which regime is likely to be the best outcome for the child over the course of their childhood and which would be the most beneficial.
S had made homophobic allegations against both H and B throughout the proceedings and had sought to discredit them. There were also ongoing proceedings regarding S’s two older children.
As no formal agreement had been entered into, the Court had to consider email correspondence between the parties, although could find nothing which supported S’s argument that H was to simply act as a sperm donor.
It was held by the Court that H was the parent who was able to meet the child’s needs both now and in the future and made a Child Arrangements Order in H and B’s favour. It was recommended that the child have contact with S no more than once per month.
This case may not have needed to go to Court if the parties had sought advice at the outset and entered into a properly thought out insemination / parenting agreement.
If you require any further information please contact a member of our expert Family teamThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.