The case concerned a commissioning mother, Monica, who had entered into a surrogacy agreement with David and Marcia. Monica agreed to carry a child for them, after being artificially inseminated with David’s sperm.
David’s application initially failed. The Judge decided the agreement was null and void. This was because it did not comply with local requirements for the voluntary termination of Monica’s parental rights.
At a trial in 2011 to determine the child's best interests – he was by then three years old - a Judge ordered that Monica should have custody, but that David should have access. That access was to be for six hours every other weekend for two years, and then for the whole of every other weekend after that.
Monica tried to argue that the whole contract should be void because it went against public policy. By majority decision, the Supreme Court disagreed.
It found that the surrogacy contract must be considered in the judge's determination of custody and access, unless its terms were contrary to the child's best interests. To that extent, the surrogacy agreement was an enforceable contract, save for the provision terminating Monica’s parental rights.
Of Monica’s arguments to seek to avoid the contract, the court’s majority decision observed:
"There are no facts in the record to indicate, nor does Monica argue, that the contract should be void or voidable due to misrepresentation, mistake, duress, undue influence or incapacity."
The majority Judgment (given by Justice Annette Ziegler) continued:
"Enforcement of surrogacy agreements promotes stability and permanence in family relationships because it allows the intended parents to plan for the arrival of their child, reinforces the expectations of all parties to the agreement, and reduces contentious litigation that could drag on for the first several years of the child's life".
Chief Justice Shirley Abrahamson agreed the first instance Judge had erred by ignoring the contract. However, she disagreed with the majority’s conclusion that such contracts should be enforced "unless contrary to the best interests the child." She wrote:
The decision was especially significant, because
has no statutes or case law that directly addresses enforceability of surrogacy arrangements. The court called on the State government to take the lead in enacting legislation to regulate surrogacy and surrogacy agreements. Wisconsin
Back on this side of the globe, surrogacy agreements are not enforceable as contracts in the
. Commissioning parents who enter into a surrogacy arrangement may seek a Parental Order. The effect of such an order is to transfer parent rights and entitlements from the surrogate mother (and any other legal parent, which may include her partner in some circumstances) to the commissioning parents. UK
What happens here if the surrogate genuinely changes her mind? This was an issue considered by our High Court in
about two years ago. Mr Justice Baker had to settle arrangements for a baby girl. She had been conceived following a surrogacy arrangement. The surrogate mother changed her mind when the child was seven days old, and wished to keep the child. London
The Judge decided that the baby should continue to live with the surrogate mother and have contact – which she had already been having – with the commissioning father. That, the Judge determined, was the arrangement that was in her best interests, and the only issue the court had to resolve. Putting the enquiry in another way, in which home was she more likely to mature into a happy and balanced adult and to achieve her fullest potential as a human?
Ultimately, the Judge reached his conclusion based on his assessment of the capacities of the various adults to meet the child’s needs. He decided that to remove the child from the surrogate mother would cause emotional harm. The Judge believed the commissioning father lacked insight into the importance of the child’s relationship with her.
Of the change of heart by the surrogate mother, Mr Justice Baker observed that in some cases a promise to give up the baby might indicate a lack of commitment to the child, calling into question the mother’s capacity to care. However, in the circumstances of this case, the court should not attach undue weight to the surrogate mother’s original promise to give up the baby.