Annual Report 2006-2007 - Cafcass

case study
Cafcass Legal and the High Court team: Baby A and Baby B
A British Asian couple had entered into a surrogacy agreement with the assistance of an agency that introduces
potential surrogate mothers to couples who are seeking to become parents. The surrogate mother was a white,
single woman, who was implanted with two eggs from the commissioning woman, fertilised with the sperm of the
commissioning man. At an early stage in the pregnancy, however, the surrogate mother changed her mind about
handing the twin babies over to their genetic parents. The case reached the High Court and involved a Guardian and
a Cafcass lawyer.
The commissioning couple was not told of the babies’ date of birth or the names they had been given, but they
applied to the court for a residence order. Under the Human Fertilisation and Embryology Act, a surrogate
mother is automatically the “mother” of the babies for all legal purposes, even though she has no genetic link
with them, and a commissioning man whose sperm has fertilised the egg is automatically the legal “father”. The
commissioning father and his wife asked the court to give them the two new born babies and remove them from the
surrogate mother. Two expert witnesses were instructed to assist the court with the cultural issues surrounding
these children, who were of Asian origin but with a white mother, and to assess the impact on them of the
circumstances of their birth.
The Guardian carried out a very delicate exercise in completing her enquiries, as all three parties were very
emotionally involved. The Guardian’s conclusion, supported by the experts’ advice, was that the twins should reside
with their genetic parents. The case came before a High Court judge. As a dramatic conclusion, on the second day
of the hearing the surrogate mother decided to give up the children and not seek to maintain any contact with them.
The two babies were delivered to the home of the commissioning couple within a few hours.
Section 1: Management Commentary | 11