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A good example of why surrogacy agreements should be enforceable?

Date posted: 22 June 2018

Lucia Johnson

H (A Child – Surrogacy Breakdown) [2017] EWCA Civ 1798


It is invariably tragic, even for family lawyers, to read about the acrimonious relationships people find themselves in concerning children. In this case two couples entered into a surrogacy arrangement and sadly the relationship between the couples broke down before the child was born resulting in the surrogate and her husband deciding not to honour the surrogacy arrangement after the birth of the child.


In this case, A and B, a male same sex couple, were the intended parents of H. A donor egg was used and A is H’s biological father.

C and D, a married same sex couple, fell out with A and B and decided not to fulfil the surrogacy arrangement. Instead they registered H’s birth and did not inform the intended parents until some 10 days after H’s birth.


As a result A and B made an application to the court. The court was asked to determine:

  1. Who H should live with;
  2. How much contact H should have with the other couple;
  3. The extent to which the other couple should be able to exercise their legal parental responsibility for H.


The Judge decided to make an Order that H lives with the intended parents, limited H’s contact with C and D to six times annually and made a series of orders limiting C and D’s ability to exercise parental responsibility.


Although C and D sought to appeal, their appeal was dismissed.


The case is interesting because it enhances the recognition of surrogacy arrangements and arguably lends credence to the school of thought that these arrangements should be recognised legally.