Kudos to the court for focusing on the best interests of the children and not fixating on a legal technicality:
A gay couple has won the right to be recognised as the legal parents of twin boys after the surrogate mother they paid to carry them disappeared. The woman, believed to be living in the state of Andhra Pradesh, India, handed over the boys last year without giving her formal consent to the handover.
The couple arranged to pay a Hyderabad clinic £17,000 to become the children’s parents under a commercial surrogacy agreement in 2010. But after the babies were born in India the following year, the surrogate mother did not formally give consent for them to be treated as the British couple’s children.
The men were in a legal limbo until Tuesday, when Mr Justice Baker granted them ‘parental orders’ after hearing that they had taken ‘all reasonable steps’ to find the anonymous donor. It is believed to be the first time that a court in England or Wales has made such an order without the consent of a birth mother.
The couple, who cannot be named for legal reasons, have been bringing up the babies since their birth in July 2011 and now have the authority to continue. The judge said that there were lessons to be learned after hearing how the couple entered into the surrogacy agreement with the clinic and the mother in 2010.
The judge said the couple agreed to pay about £17,000 for the ‘entire package of treatment and costs’. Before the twins were born, the couple’s lawyers wrote to the director of the clinic pointing out the need for the surrogate mother to give consent to parental orders. The director replied that the clinic ‘would be happy to be of help’.
The judge said after the boys were born, the couple received a document purportedly signed by the surrogate mother and a doctor. The document said the surrogate mother had no objections to the provision of the boys’ exit visas. Mr Justice Jonathan Baker said the couple ‘assumed responsibility’ for the babies two days after their birth and left India without the surrogate mother giving signed consent to parental orders.
The judge said one of the men emailed the director of the clinic setting a ‘deadline’ for the production of the mother’s signed consent. Three days later they received a package, purportedly from the director, containing a sheet of paper with an ‘obscene gesture’ printed on it. The couple then asked an ‘inquiry agent’ to try to find the surrogate mother – but without success.
In his ruling, the judge said: ‘It is a very important element of the surrogacy law in this country that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child. ‘The reasons for this provision are obvious. A surrogate mother is not merely a cipher. ‘She plays the most important role in bringing the child into the world. She is a “natural parent” of the child … ‘The act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life. ‘It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give consent to the parental order.’ The judge continued: ‘I accept that these applicants have taken all reasonable steps to obtain the woman’s consent.
‘If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her. ‘I accept that it is not the applicants’ fault that they found themselves in this position. ‘I am satisfied that they reasonably believed that the clinic and its staff would behave responsibly. ‘It seems that they and the twins have been badly let down.’
On a related note, this is yet another example of the perilous nature of surrogacy in India.