In the recent case of CW v NT and another [2011] EWHH 33 a couple entered into a surrogacy agreement with a woman who, following the birth, refused to hand the child over.

In 2009 Mr and Mrs W made an informal agreement with a woman they contacted through a surrogacy website.  The woman became pregnant by Mr W and received several thousand pounds from them.  During the pregnancy the woman changed her mind and after the baby was born refused to hand her over.  Mr W applied for a residence order.  The application was transferred to the High Court.

The judge in the High Court was referred to the case of Re P (Surrogacy: Residence) which stated the test when choosing between two competing parents was in which home the child was most likely to mature into a happy and balanced adult and to achieve their fullest potential. That case also stressed that the issue the judge had to decide was nothing whatsoever to do with penalising the mother for breaking her agreement or for any deception.

Despite the High Court judge’s criticism of the mother for some deceitful and dishonest behaviour, he found that she had not set out to deliberately deceive Mr and Mrs W and had entered into the surrogacy with the intention of handing the child over at birth.  The judge said that the Court should not attach undue weight to the fact that the mother had originally promised to give the baby up.

The judge heard evidence from the guardian who stated that there was evidence of a good attachment between the baby and the mother and that the baby was thriving in the mother’s care.

The judge found that the mother was better able to meet the baby’s emotional needs and that there was a clear attachment between mother and daughter to the extent that removing her from her mother’s care would cause a measure of harm and that the mother was more likely than Mr and Mrs W to promote contact.  The judge made a residence order in the mother’s favour and a contact order to the father.

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