What happens if a surrogate changes their mind and keeps the baby?

For those prospective parents expecting a baby via surrogacy, it can be an enduring concern that their surrogate will refuse to hand over the baby after giving birth. What rights do prospective parents have, if any? We discuss the law regarding parents’ rights if their surrogate refuses to hand over the baby and examine the case of a North Tyneside woman who changed her mind.

What is the law surrounding surrogacy in the UK?

Fundamentally, the law regards a birth mother as a child’s legal parent, even if she is a surrogate. If the birth mother is married, then her spouse would also be recognised as the child’s legal parent. In uncontested surrogacy arrangements, the intended parents apply to the court for a parental order. This assigns legal parenthood and confirms who is responsible for the child in law. One of the conditions for this is the surrogate’s consent. If they do not give their consent, the court can still award custody to the intended parents, but it does not have the power to make them the legal parents.

Before deciding the best legal remedy, the court must establish legal parenthood. This is a complex area of law, but the basics are:

  • Single surrogate: the biological father can be named on the child’s birth certificate and is therefore considered its legal father with parental responsibility
  • Married/civil partnership surrogate: the surrogate’s spouse is considered the legal father, unless this is later changed by a parental order. This leaves the intended parents in a legal vacuum
  • Surrogate has a long-term partner: the partner will not be legally considered the child’s legal parent. Therefore, the child’s intended biological father could be named on the birth certificate.

If the surrogate indicates they wish to keep the baby in any of the above cases, then the intended parents must consider their options.

What legal options are there if my surrogate says she wants to keep the baby?

Applying for a parental order can take anything between six and nine months, and in some particularly protracted cases, even longer. If the surrogate and their spouse do not give their consent, then any application could be doomed to fail. Although, in practice, the child tends to end up with the intended parents, even in cases where the surrogate is named as the legal parent.

The surrogate is given a mandatory six-week cooling off period and legally must be given this time following the birth to consider their position. Unfortunately, during those six weeks, the surrogate has time to bond with the child, which arguably increases the possibility of them changing their mind. That said, in most surrogacy arrangements, it would be very unusual for the baby not to be handed over immediately after the birth. Of course, this may not always happen, particularly if a family member has had the baby, rather than an unrelated third party. This is what happened in the case of Leanne Stanford, who changed her mind.

Woman from North Tyneside changed her mind on surrogacy, creating a family rift

Leanne Stanford, a 31-year-old woman from Wallsend North Tyneside, made headlines when she announced her decision to carry a child for her mother as a surrogate, using her stepdad as a sperm donor. However, after becoming pregnant, she changed her mind and decided to keep the baby, and so dividing the family. Stanford explained she had initially agreed to be a surrogate to help her mother after a miscarriage, but had not fully understood the emotional and physical toll it would take on her. The case has sparked a debate about the ethics of surrogacy, the emotional risks, and the importance of informed consent for all parties involved. If you are in the North East region of the UK and need legal advice regarding a family or surrogacy matter, find a local solicitor here who can help you.

What can you do if a surrogate refuses to give consent?

You could apply for a child arrangement order, where the court considers the factors contained in the Welfare Checklist. This includes things such as the child’s physical, emotional, and educational needs, their age, background, and any other characteristics the court considers relevant, and the ability of the surrogate and the intended parents to meet the child’s needs.


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