UK: Gay couple win right to keep twins
Reposted from London Evening Standard: http://www.standard.co.uk/incoming/gay-couple-win-right-to-keep-twins-even-though-surrogate-mother-vanished-without-giving-formal-consent-8194329.html
An Indian woman who acted as a surrogate mother for two men living as civil partners in Britain vanished without giving formal consent for the twin boys she bore to be treated as the couple's children, a High Court judge has heard.
Mr Justice Baker said he had been asked to use a piece of legislation which allowed judges to make "parental orders" without the consent of the birth mother.
The judge said he thought it was the first time a court in England or Wales had considered using the provision.
He said birth mothers were "natural parents" and said it was "very important" that they gave consent.
And he told couples considering surrogacy to learn lessons from the case.
Mr Justice Baker said he was satisfied that the couple involved had taken "all reasonable steps" to obtain the woman's consent.
He made parental orders which allow the boys, born in India in 2011, to be treated as the couple's children.
The judge - who issued a written ruling after hearings in the Family Division of the High Court in London - said neither the children nor the couple nor the surrogate mother should be identified.
Mr Justice Baker said the couple entered into a surrogacy agreement with a clinic in Hyderabad and the surrogate mother - thought to live in Andhra Pradesh - in 2010.
An "anonymous Indian egg donor" was selected and one of the men was the "genetic father".
The judge said the couple agreed to pay about £17,000 for the "entire package of treatment and costs".
He said that, 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 said "we 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 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.
Mr Justice Baker said he then had to consider making parental orders without the surrogate mother's consent.
"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," said Mr Justice Baker.
"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."
He said the law allowed an exception to that requirement where a surrogate mother could not be found or was "incapable" of giving agreement.
The judge added: "So far as this court is aware, this provision ... has not been considered previously by any court.
"The question therefore arises as to how the provision should be interpreted and applied."
Mr Justice Baker said he had decided to make parental orders.
"I accept that these applicants have taken all reasonable steps to obtain the woman's consent," said Mr Justice Baker.
"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."
He added: "In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother ... is not required on the grounds that she cannot be found.
"In future cases, however, applicants and their advisers should learn the lessons of this case, and take steps to ensure that clear lines of communication with the surrogate are established before the birth to facilitate the giving of consent."