Surrogacy arrangement breakdown: surrogate ordered to hand child over to intended parents

originally posted on The Transparency Project Blog

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

Judge ordered surrogate mother to hand child over to intended same sex parents


The case concerned two couples A and B, male same-sex partners, and C and D, a heterosexual married couple. C and D had 5 children of their own. C, having been a gestational surrogate on two previous occasions, entered into a surrogacy agreement with A and B. C became pregnancy with H following embryo transfer. (using embryos created from A and B’s sperm and a donor egg from a Spanish egg donor which resulted in C’s pregnancy with H. A DNA test later confirmed A’s paternity.)

The relationship between the parties deteriorated to the point that there was no communication. In late March 2016, C and D decided that they were not going to hand over the child to A and B as per the surrogacy agreement and sought legal advice. In April 2016 C gave birth to H. C’s solicitor wrote to A and B to inform them that they were not prepared to follow their surrogacy agreement and would not consent to a parental order. A and B were not aware of H’s birth until after C and D had already registered the birth. A and B immediately issued legal proceedings.

C and D were the legal parents of H. Since C was the child’s gestational mother, she was also the child’s legal mother. As D was married to C, he was to be treated as the child’s legal father. A and B gained parental responsibility during the proceedings by virtue of an interim child arrangements order under s.8 Children Act 1989. This resulted in a situation whereby H had two legal parents and four adults with parental responsibility. A and B were unable to become the legal parents of H through a parental order as per the original surrogacy agreement due to the fact that surrogacy arrangements are unenforceable (s.1A Surrogacy Arrangements Act 1985) and because parental orders can only be made if the legal parents unconditionally agree (s.54(6) Human Fertilisation and Embryology 2008 Act.)

The Judge therefore concluded that it would be best for H to live with A and B, the intended parents, because:

(1) H’s identity needs as a child of gay intended parents would be best met by living with a genetic parent,
(2) A and B could meet H’s day-to-day needs in an attuned way,
(3) A and B were best able to promote the relationship with C and D, having remained positive about their significance despite the difficulties, and
(4) C and D were unlikely to significantly change their views about A and B.

C and D appealed the decision, which was dismissed. McFarlane LJ emphasised the importance of the child’s welfare, including the considerations set out in the s.1(3) Children Act 1989, and stated that the child’s gestational and legal parentage, genetic relationships, and the manner in which the surrogacy came about. The Court of Appeal endorsed the words of Theis J at first instance: ‘This case is another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind.’ This case therefore serves as a reminder of the potential problems of entering into a surrogacy arrangement and the need for legal reform.

(Note too yesterday’s draft remedial order from the Government to Parliament for law reform for single surrogate parents. See this blog at NGA Law and background here).



Should drinking during pregnancy be illegal?

The number of diagnosed cases of foetal alcohol syndrome (FAS) has tripled in the last 16 years.

FAS is a very rare condition caused by heavy of frequent alcohol consumption during pregnancy. The condition can cause physical and cognitive problems such as facial abnormalities. Babies born with FAS often are born smaller than other babies and generally stay small throughout their life. Some babies may not have physical signs of FAS but a range of developmental disorders such as hyperactivity and learning difficulties.

Some fear that there are many in the UK have not been diagnosed, as there is often no sign of the physical condition. Where people are undiagnosed they will often struggle at school and not cope during adult life.

Susan Fleisher, chief executive of the National Organisation for Foetal Alcohol Syndrome, whose adopted daughter suffers from the condition, said: “The World Health Organisation says that one in 100 people has foetal alcohol spectrum disorder, which is the umbrella term used to describe the conditions that occur in people who have been diagnosed with some, but not all, of the symptoms of foetal alcohol syndrome. But there have been studies in Italy and the US that say that between 2% and 5% of the population is affected by this.

“And, remember, Britain is the number one binge-drinking country in Europe. The chances are we are closer to 5%, although we can’t say that for sure because it is under-diagnosed and difficult to diagnose. Only 20% have the physical signs of this condition such as small, wide-set eye openings, flattened filtrum, thin upper lip, lower ears, different creases in the hands and there can be skeletal damage. Those are the physical things, but if you don’t see them, then perhaps you don’t ask the question.”

More than half of the women in the UK drink more than the recommended daily amount, and a quarter of those drink more than double the recommended amounts. In 2002, around 200,000 women were admitted to hospitals due to alcohol abuse. In 2010, that figure had risen to 437,000.

The Department of Health advises that mothers do not drink alcohol whilst pregnant and the National Institute for Health and Clinical Excellence advises women to avoid alcohol in the first 3 months to reduce the use of miscarriage.

In 2007 Lord Mitchell introduced an alcohol labelling bill in the House of Lords which sought to issue a government warning on the labels of alcohol products, which reads: ‘Drinking alcoholic beverages during pregnancy, even in small quantities, can have serious consequences for the health of the baby.’ However, the bill failed to gain a sponsor in the House of Commons.

Berger, who uncovered the new figures, said: “The government must ensure that expectant mums have the information they need to make informed choices during their pregnancy. Instead, ministers have relied too heavily on the drinks industry to do it for them.

“Government must stop putting the interests of business before the health of mums and babies and take a bolder approach.”

Should it be illegal to consume alcohol whilst pregnant?

For full article please see <>


Hollie Le Cras

Young children worry about being fat and ugly

A shocking survey of childcare professionals found that 71% of children as young as three are becoming conscious about weight and appearance. Almost a third of nursery and school staff admitted that they had heard a child refer to themselves as ‘fat’ while 10% said they had heard a child say that they were ugly.

Almost ¼ of those surveyed said that there had been signs of children aged between three and five being unhappy with their appearance and bodies. This figure almost doubled to half of six to ten year olds.

The Association for Childcare and Early Years who carried out the research suggest that children who have worries about body image even before they have started school highlights that children are becoming more anxious about how they look at a younger age than before.

Dr Harding said: “By the age of three or four some children have already pretty much begun to make up their minds – and even hold strong views – about how bodies should look.”

“There is also research evidence to suggest that some 4-year-olds are aware of strategies as to how to lose weight.”

This study outlines the alarming reality of the perception of body image that children as young as three aspire to achieve. The characteristics of some of these children show signs of early onset eating disorders, which is something that is a problem in the UK. Some would argue that the mental health system in this country is terribly underfunded and poorly run and that eating disorders in children are either recognised too late, or that proper treatment and psychological support is not offered.

It is difficult to understand why a stronger system has not been implemented into UK teaching whereby body type is frequently discussed in PSHE and children are educated about the dangers of dieting and eating disorders. This could also include healthy eating in line with the recent 2015-16 figures showing a steady increase in childhood obesity. Many would agree that a plan like this would reduce the chances of children becoming mentally-ill in relation to obsessive body type requirements, and it would help all children understand the importance of balancing healthy eating, exercise and a positive body image.

For full article please see <>


Hollie Le Cras

Child Obesity: Rising Again?

The recent NHS figures have shown that the number of children becoming obese is still growing. The figures show that children are being categorised as obese as young as four or five years old.

According to the latest annual measurements of children’s BMIs in England:

9.3% of four and five year-olds in 2015-16 were classed as obese. According to the national child measurement programme (NCMP) this is a 0.2% rise from the previous year.

19.8% of ten and eleven year olds were categorised as obese, which is a 0.7% rise in obesity from the previous year. Almost one in five children in this category are classed as obese.

Richmond upon Thames in south-west London had the lowest percentage of year six obesity in England at only 11%. Shockingly, in east London in Barking and Dagenham 28.5% of year six pupils were recorded as obese.

After child obesity fell slightly during 2014-15, the NHS figures have demonstrated a rise again. The statistics also showed obesity to be more common for children growing up in deprived areas. The NHS Digital’s report found that for reception students, those living in the most deprived areas had a 12.5% obesity rate which is more than double than the rate for the least deprived students (5.5%). Similarly, in year six 26% of the most deprived students were found to be obese in contrast with only 11.7% of children from the least deprived area.

Some could argue that this is a result of Theresa May’s government watering down the childhood obesity strategy that David Cameron had built up. Jamie Oliver has accused May of putting interests of big businesses above public health.

Alison Cox, Cancer Research UK’s director of prevention, said: “Our nation has hit a devastating record high for childhood obesity. The trend over the last decade is showing no signs of slowing down, and this worrying news is something that could have been prevented with more government action.”

Some have suggested the government levy highly-sugared soft drinks on time, to restrict advertising junk food to children through a television watershed cap and to ask food manufacturers to set targets to reduce the amount of sugar in their items.

For full article please see <>


Hollie Le Cras

Great Ormond Street Hospital for Children -v- Gard




The tragic case of Great Ormond Street Hospital for Children v Gard was heard in the High Court Family Division last week. The case concerned an eight-month-old child, Charlie Gard, who suffers from Mitochondrial Depletion Syndrome, a rare genetic condition that causes brain damage and muscle weakness. Charlie has been reported to be deaf and blind and is unable to breathe without a ventilator. The medical professionals at Great Ormond Street Hospital responsible for Charlie’s care stated that it was not in Charlie’s best interests to continue treatment. Charlie’s parents disagreed and raised over £1.2 million, in order to take Charlie to the US where he would be able to undergo nucleoside bypass therapy. Great Ormond Street Hospital applied to the court for permission to withdraw Charlie’s treatment and move him to a palliative care programme. By their application dated 24 February 2017, they asked the court to make the following orders:

  1. that Charlie, by reason of his minority, lacks capacity to make decisions regarding his medical treatment;
  2. that it is lawful and in Charlie’s best interests for artificial ventilation to be withdrawn;
  3. that it is lawful and in Charlie’s best interests for his treating clinicians to provide him with palliative care only; and
  4. that it is lawful and in Charlie’s best interest not to undergo nucleoside therapy; provided always that the measures and treatments adopted are the most compatible with maintaining Charlie’s dignity.


Best Interests

The judgment was heard on 12th April 2017 and is due to be published in the coming weeks. In the press summary released following the judgment, Mr Justice Francis stated that, ‘The duty with which I am now charged is to decide, according to well laid down legal principles, what is in Charlie’s best interests.’ He further stated that, ‘The relevant legal principles which guide the exercise of my jurisdiction are well settled. It is important that I stress that I am not applying a subjective test, I am not saying what I would do in a given situation but I am applying law. Referring to the judgment in Wyatt v Portsmouth NHS Trust [2005] EWHC 117 in which it was stated that,

The judge must decide what is in the child’s best interests. In making that decision, the welfare of the child is paramount, and the judge must look at the question from the assumed point of view of the child. There is a strong presumption in favour of a course of action which will prolong life, but that presumption is not irrebuttable.

On application of the best interests test, Mr Justice Francis decided that it was not in Charlie’s best interests. On reviewing the evidence of the doctor in the US, he found that he was ‘unable to indicate from any scientific basis whether a patient with encephalopathy would respond positively.’ Mr Justice Francis therefore cast doubt upon the effectiveness of the nucleoside bypass therapy. He stated that,

There is unanimity among the experts from whom I have heard that nucleoside therapy cannot reverse structural brain damage. I dare say that medical science may benefit, objectively, from the experiment, but experimentation cannot be in Charlie’s best interests unless there is a prospect of benefit for him.


What Next?

It has been reported that Charlie’s parents are seeking to appeal the decision.


Media Comment

This case has attracted significant media attention and there has been strong public support for the parents. Questions have been asked as to who has, and who should have, the right to decide on behalf of a child. Comments have also been made regarding why the decision over Charlie’s medical treatment lay in the hands of the judge. For example in broadcasts at BBC 3 Counties Radio and BBC5Live here.

Some media reactions have been critical of the medical profession. For instance, Researching Reform have accused the medical profession of ‘Professional arrogance’ and referred to those who consider withdrawing treatment as being in Charlie’s best interest as ‘the anti treatment lobby’.

Comparisons have been made to other cases where children and parents who have been affected by a withdrawal of treatment decision. In 2014, the parents of Ashya King removed him from Southampton General Hospital and took him abroad for proton therapy, which he was unable to receive on the NHS. Ashya is now said to be in school and cancer free. The Sunday Express have reported that another young boy called Maxwell, aged 5, has received the therapy that Charlie’s parents are seeking, for a mitochondrial condition (although not the exact same condition as Charlie’s). It has been said to have significantly improved the condition.

The case has also been used to highlight the difficulty in accessing legal aid. Charlie’s parents were above the income threshold and therefore not entitled to legal aid. The case was able to go ahead because the legal team were working on a pro bono basis. See for example this Justice Gap report.


Press summary below



Seminar: religion, pluralism and medical ethics in paediatric intensive care

Seminar: religion, pluralism and medical ethics in paediatric intensive care

See original post  –

May 8 2017, Jesus College Oxford 2pm-5pm, including refreshments

A child is critically ill in the intensive care unit. Doctors believe that the child’s prognosis is very poor and that treatment should be withdrawn. However, her parents do not agree. They say that it is contrary to their religion to stop treatment.

How often is religion a source of disagreement about treatment in intensive care? What are the views of major religions about withdrawing treatment in intensive care? 

Should religious requests for treatment be treated differently from secular requests? Should religious preferences for treatment count in a child? Should religious views be accommodated when providing scarce and expensive medical resources?

Guest Speaker: Prof John Paris S.J., Professor of Bioethics, Boston College

Speakers/ Panel Participants:

John Paris, Joe Brierley, Sarah Barclay, David Jones, John Wyatt, Siddiq Diwan, Dominic Wilkinson

This seminar is aimed at health professionals, ethicists, philosophers, theologians and chaplains. There are strictly limited places.

Early bird registration £15/10* if register by 28th February. £25/20* subsequently.

*Discounted registration for students.

To reserve a place at the seminar, please email rachel.gaminiratne [at]

Questions about the seminar should be directed to Professor Dominic Wilkinson, dominic.wilkinson [at]

Teenager dies after taking ecstasy

A teenager died after taking ecstasy at Warehouse nightclub in Newcastle.
The 18-year-old girl fell ill early on Sunday morning. She was taken to the hospital but died shortly after.

A 19-year-old man has been arrested in connection with her death. The investigating officers believe that she had taken ecstasy before she fell ill. The authorities have urged anyone else who may have taken drugs at the Warehouse nightclub in Newcastle to go seek urgent medical advice.

“The initial police investigation into this young woman’s death indicates that she may have taken some kind of drug and had a fatal reaction to the substance.

We believe it may have been MDMA and we need anyone else who was at this nightclub and who may have taken any drugs to go to hospital immediately and get checked out.

We need to establish exactly what the substance was and where it came from in order to prevent anyone else from taking it.”

  • Chief Inspector Phil McConville, Northumbria Police.

Sunday 6 November 2016


Hollie Le Cras

For full article see <;


More children are seeking help for anxiety issues

The number of young people and children seeking help with anxiety has increased by one third. Data from NSPCC’s Childline service indicates that 11,706 counselling sessions were carried out involving anxiety in 2015/16. This  was a staggering increase from the previous year where the figure was just 8,642.

The problem seems to be worsening, in April to September it is estimated that the service dealt with an average of over 1,000 cases of anxiety a month.

Children as young as eight have used the service to discuss their anxiety issues. Girls are seven times more likely to contact Childline.

Childline president, Esther Rantzen stated that children are sometimes upset by world events and change.

“Seeing pictures of crying and bewildered toddlers being pulled from bomb-damaged homes upsets all of us,” she said. “Often we fail to notice the impact these stories are having on young people.”

“The good news is that so many children are able to express their anxiety to Childline, knowing that we will take them seriously, so that we are able to reassure them.”

Peter Wanless, chief executive of the NSPCC, said: “The world can be a worrying place but we need to ensure our children are reassured rather than left overwhelmed and frightened.

“It’s only natural for children and young people to feel worried sometimes, but when they are plagued by constant fears that are resulting in panic attacks and making them not want to leave the house then they need support.”


Hollie Le Cras

For full story see <;



Medicine and What it Means to be Human (CfP, Edited Collection)

Medicine and What it Means to be Human (CfP, Edited Collection)

Below is a blog post originally from the Centre of Medical Humanities

The role of the doctor, surgeon, physician, or apothecary has been instrumental throughout western cultural history as a determining and defining force of health and well-being, and thus of idealised, often unquestioned norms. While medicine itself is much more than the biological, the privileging of the scientific often means that the medical becomes an esoteric, isolated realm, potentially denying individual humans (and, by extension, broader society) access to their own identity, as well as the agency to define that identity for themselves.
Much of the research that has been done within medical humanities focuses on what medical humanities is, what its uses are, how or if it should be implemented, and what research methodologies are appropriate. In terms of the humanities aspect, the research has proceeded logically into medical education, ethics, psycho-social sciences, the history of medicine, medicine in literature, and narrativity. In response to the meaningful work being done to promote medical humanities within medical training programs, we suggest that medical humanities has a much broader application than making better doctors. Indeed, what we seek to do through this volume is to open up a conversation that helps society to understand how the medical has historically defined us: what it means to be human.
This project will examine the role of humanities in helping us to understand where medicine and medical practice comes from in historical and cultural contexts, while critiquing the primacy of medical science within those debates—which is, arguably, a relatively recent development in intellectual history. It is important to recognise the ways in which other disciplines have historically informed and continue to shape medical practice and understanding, even if this shaping occurs unconsciously.
Chapter proposals from any discipline will be considered for this interdisciplinary study. 500-word abstracts and a one-page CV should be sent to Dr Lesa Scholl (Emmanuel College within the University of Queensland) by December 16, 2016. Decisions on contributions will be made by mid-January, 2017.

Hope and Fear for New Human Life, University of Southampton Human Worlds Festival,Wednesday 23rd November

Hope and Fear for New Human Life, University of Southampton Human Worlds Festival,Wednesday 23rd November, Shirley and Fremantle Community Centre, Southampton

Join us for Hope and Fear for New Human Life, a panel discussion with four speakers from across the Faculty of Humanities at the University of Southampton whose research explores pregnancy, parenting and birth from different perspectives. The session will include time for the audience to share their thoughts and questions.

Hope and Fear for New Human Life