H (A Child : Surrogacy Breakdown)

JUDGMENT

McFarlane LJ:

Introduction

This is the judgment of the court following an appeal heard on 12 October 2017.

Our decision is that the appeal should be dismissed.

The appeal concerned limited but important elements of an order made by Theis J on 13 December 2016, following the breakdown of an intended surrogacy arrangement. When granting permission to appeal, King LJ identified the case as giving rise to issues about the proper approach in such cases.

Our essential conclusions are these:

We reaffirm the position stated by this court in the surrogacy case Re N (a Child) [2007] EWCA Civ. 1053 . The essential question in every case is: all things considered, which outcome will be best for the child? The law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. The welfare principle applies with full force in such cases; indeed, the more unusual the facts, the greater the need to keep the child at the heart of the decision, and to ensure that the interests of others prevail only where they are in harmony with the interests of the child.

Although the appeal was trailed as involving novel legal issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Children Act 1989, on examination these issues fell away and the argument ultimately boiled down to the question of whether the Judge erred in her evaluation of the evidence.

As to that, our view is that the Judge rightly took a conventional welfare approach to an unconventional family structure. Her decisions about where the child should live (not appealed) and about the role that should be played by the other family (the focus of this appeal) were ones that she was entitled to reach on the evidence before her.

The background

The proceedings concern H, who was seven months old at the time of the hearing before the Judge. H’s future was contested between two couples who had entered into a surrogacy arrangement. In this judgment, we call the first couple, male same-sex partners, A and B, and the second couple, a heterosexual married couple, C and D.

The outline history was concisely set out by the Judge:

“C and D have five children of their own and C has twice been a gestational surrogate before. The parties met online for the first time in April 2015. They signed a surrogacy agreement in August 2015. C and A travelled to a clinic in Cyprus in September 2015 for the embryo transfer, usin