Surrogate mother wins love-tug court battle

A surrogate mother who gave birth to twins with whom she has no biological connection today fought off a bid to have the children sent to the United States.

A husband and wife - two lawyers from California who arranged the pregnancy using donor embryos fertilised by the man - applied to the High Court in London for a declaration that the ‘‘unique’’ case falls within international abduction treaties.

Mr Justice Hedley ruled that the children, born in November last year in England, have no fixed country of residence and are therefore not covered by the Hague Convention.

Although the ruling means that the children will not go to the US, their future still remains uncertain as the legal battle continues.

The judge prefaced his judgment with a warning that the case was an example of how the scientific skills used were ‘‘racing ahead of our ethical grasp of issues involved’’.

He said: ‘‘The adults in this case will all have been deeply hurt, nor is it possible to see at the moment where that hurt will end.

‘‘What it will mean to these children as they grow up and try to unravel and come to terms with their origins, no one can say. Much more sad is the fact, as I suspect, that no one has ever considered it.’’

The case, in which no names can be used which could identify the children, was heard in private but the judge said he had made his ruling in open court to allow a public discussion on the issues.

He said: ‘‘This case is unique in the experience of all who have dealt with it.’’

The judge said the mother, called H, wanted to become a surrogate to help a childless couple.

Because surrogacy agreements are not encouraged in the UK, she went to California where the laws allow the arrangements for money. She was introduced to the couple, W and B, who wanted a second child. The husband was fertile but his wife was not.

The judge said: ‘‘They were interested in a surrogacy agreement under which H would carry embryos nurtured from the egg of an anonymous donor but fertilised by the sperm of W.

‘‘If such an arrangement were to proceed, then, of course, of the three adults involved, only W would have any biological connection to the child so conceived.’’

Under the agreement, the couple would pay all the costs and expenses with the child being born in California to become an immediate part of their family.

H was expected to return home to England but go back to California for the birth at which W and B would be present to take immediate possession of the child.

The judge said the plan started to go wrong when it was found that H was pregnant with twins and there was talk of ‘‘selective reduction’’ which she refused.

H then accused the American couple of threatening to default on their payments.

‘‘All this, it has to be said, makes sordid reading, but I stress that I do not make findings about these matters,’’ said Mr Justice Hedley.

H applied to a court in California for a declaration that W and B had all the parental responsibility and she had none and this was granted in October last year.

The judge said she had returned home before the court hearing and was ‘‘having serious reservations about what she was doing’’.