Child remains with surrogate on appeal: what lessons can be learned?

On 2 March 2017, the Court of Appeal upheld a decision granting care of a surrogate born child of 20 months to the surrogate in Re M [2017] EWCA Civ 228.

The appeal was brought by the intended parents following court orders made by Mrs Justice Russell on 30 June 2016.  Russell J ordered the child to live with the surrogate and her partner and spend time with his biological father every two months. This followed a dispute between the surrogate and the intended parents wherein the surrogate retained the child and refused to consent to the grant of a parental order.

On appeal, the male same-sex intended parents sought care of the child and parental responsibility for the non-biological intended father. They raised five points on appeal, namely:

  • The non-biological intended father should have been granted parental responsibility for the child.
  • The judge failed to direct herself properly about the standard of proof relating to the factual dispute about the nature of the intended parents' relationship with their previous surrogate (resulting in the birth of twins in 2013).
  • The judge failed to give herself a Lucas direction (a direction that a lie cannot automatically be taken as support for the other side's case) given her findings that the intended parents had deliberately lied about their relationship with their previous surrogate.
  • The judge made findings about the intended parents' behaviour in relation to their previous surrogate when she had indicated she would not do so and did not give an opportunity to test the evidence in cross-examination.
  • The judge failed to address the long term welfare decisions about the child in a holistic way and carry out a proper balancing exercise when engaging in the welfare analysis of the child's needs.

The Court of Appeal dismissed four of the grounds, allowing the appeal in respect of the grant of parental responsibility to the non-biological intended father.  In doing so, the appeal judges made a number of findings of interest.

The appeal judges found that it is not necessary for every judgment to include a self-direction on the standard of proof to be used in making findings of fact.

Russell J's decision had been influenced by the oral evidence from all the witnesses.  She based much of her conclusions from what the intended parents said themselves or impressions formed during their evidence. These are the sorts of assessments routinely carried out by judges.  These findings are not readily overturned on appeal.

Russell J's ultimate assessment of whether it was in the child's best interests to live with the surrogate or the intended parents was broadly based with careful consideration of the material factors.

Russell J took into account the quantity of information compiled by the child's guardian about the parenting styles of the surrogate and the intended parents. She took into account the guardian's view that the emotional welfare of the child was a very significant factor in the case.

Russell J paid proper attention to the child's genetic link with his biological intended father and twin siblings but it was not a trump card, welfare being the paramount consideration.

Russell J was very aware of the surrogacy context, but it was only one of the circumstances of the case and this did not outweigh welfare.

The child needed to have the surrogate and the intended parents in his life in the facts of this case. It was the surrogate who was most able to secure this on the evidence. Russell J took into account the child's bond with her having lived with her since birth, the "warmth" of the surrogate's household compared with that of the intended parents and her ability to best promote the child's sense of his identity and allow him to develop a good relationship with the intended parents and his genetic siblings.

This case demonstrates the complex issues and dynamics when surrogacy arrangements fall into dispute. It shows long running legal wrangles can ensue involving wide-ranging issues. It brings into focus the weight attributed to written and oral evidence and the judge's experience of people and how they feel and behave in a court setting in determining outcomes for children in contested situations.  The welfare of the child is paramount and this encompasses both their physical and emotional best interests. The parties' ability to meet those needs, promote a positive self-identity for the child and good relations with other family members as well as demonstrate understanding and self-awareness are relevant factors.

Finally, Russell J identified that the intended parents had not discussed with their surrogate the legal rights and status of all three of them at the start of their surrogacy journey.  They had not informed themselves about what professional support might be available either to assist them achieve a successful surrogacy arrangement.  Understanding and minimising legal risks and pitfalls requires expert legal advice when families are created through assisted conception and fertility treatment. Legal risk management spans the short, medium and longer term.  Overlooking legal risks may undermine the form of family and/or the legal status desired producing long-term implications as the parties in this case sadly found out.

If you would like to discuss your situation in more detail or find out more about UK fertility, family  and parenting law contact Louisa Ghevaert by email: or by telephone +44 (0)207 7886382.