England: woman carrying baby as surrogate mother for her son described as ‘entirely lawful’ by judge

An arrangement where a woman carried her son’s baby as a surrogate mother has been described as “entirely lawful” by a judge.

The mother carried the donor egg which had been fertilised with her son’s sperm when another female relative who was meant to carry the IVF baby was forced to withdraw for medical reasons.

The man, who is in his mid-20s and lives alone, was told he will now be able to adopt the child as his own in spite of rules which provide that a surrogate mother needs to give the child to two parents.

Mrs Justice Theis said that because the baby boy and his father were already related legally as brothers, it meant the baby, now seven months old, could be in the care of the man.

In Mrs Justice Theis’ ruling at a family hearing in London, the judge said that despite being “unusual”, the arrangement was not illegal.

She said that “The arrangement the parties entered into is not one, as far as I am aware, that either this court or the clinic has previously encountered and although highly unusual, is entirely lawful under the relevant statutory provisions.”

Mrs Justice Theis added that it had been entered into after the mother and son had received legal advice and counselling as well as treatment by a fertility clinic licensed by the Human Fertilisation and Embryology Authority.

Details of the case came out yesterday in Mrs Justice Theis’ written judgment.

She said: “All the reports describe care of as being to a high standard … He waited until his circumstances were settled in terms of a job and home to enable him to provide the care a child would need.”

A background report provides that the mother and her husband consider the baby their grandson and that the family want him to know about the arrangement.

Another report stated the baby “clearly has formulated a secure attachment to the father”.

The judge described as a “critical feature” the fact that the family was close. She added: “The strength of these familial relationships, and the consequent support they provide now and in the future, will ensure the child’s lifelong needs are met.”

But critics raised concern over the ruling with Robert Flello, a Labour MP telling the Daily Mail: “This case throws up many concerns and worries.

“My greatest concern in all of this is the potential emotional damage to the child in years to come, as he tries to work out family relationships that most of us can take for granted.”

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