According to the child's mother all parties had agreed that she would be the primary carer but the child's biological father argued that she had agreed to be a surrogate for him and his partner.
The case was heard in London and Birmingham earlier this year but the decision of Ms Justice Russell — who declared that it was in the "best interests" of the one-year-old girl to live with her father — has just been made public.
Ms Justice Russell said that "the pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend."
"Therefore [the girl] living with [the two men] and spending time with [the woman] from time to time fortunately coincides with the reality of her conception and accords with [the girl's] identity and place within her family," she concluded.
The judge also spoke of the woman's "offensive language" towards the gay couple, which included "stereotypical images and descriptions of gay men," and said she had "insinuated that gay men in same-sex relationships behave in a sexually disinhibited manner."
Disgusting though it is, the big issue here isn't actually the fact that a gay couple had to go through a legal battle during which their morality was called into question, purely based on their sexuality. It's that surrogacy in the U.K. is still a legal minefield.
For starters, even if you have a surrogacy contract, it's not enforceable by U.K. law. Legally the woman who gives birth to the child is its mother and she has the right to keep the child — even if they're not genetically related (i.e. if the surrogate carried an embryo donated by another man and woman). Additionally the child's legal father is the surrogate's husband or civil partner until legal rights are given to another man through a parental order or adoption.
Surrogacy laws in the U.K. need to change say Salisbury-based fertility lawyers Natalie Gamble Associates: "We need a better framework for surrogacy which better supports all involved, and ensures that things are managed ethically and responsibly. With improved law in the U.K., fewer parents would need to go abroad to jurisdictions where things may be complex, unsafe and expensive."
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