There has never been, nor will there ever be, anything quite so special as the love between the mother and a son, so the proverb goes.
But this fundamental bond has been tested in a landmark legal battle in London where a surrogate mother had to fight her child’s same-sex parents through the courts to see him regularly, can reveal today.
The woman, who cannot be named for legal reasons, won the case after the gay couple she carried the baby for for nine months tried to stop her seeing her own biological child and erase her from his life.
The two men claimed that the little boy would be confused if he saw his mother because he lived with them in a ‘motherless family’ and was being raised within the LGBT community.
The couple told her there was ‘no vacancy’ for her ‘just because [he] has same-sex parents’ – even though he was conceived using her egg and carried in her womb.
They also called her homophobic for insisting the little boy recognised her as his mother, accusing her of pursuing an ‘inappropriate relationship’ and arguing that regular contact with her would give him the impression that having same-sex parents made his family incomplete.
On one occasion the men even threatened to call the police when she turned up at their house to see her son for a pre-arranged visit – but she was refused access and a ‘horrendous’ row ensued in the presence of their young son.
One child psychologist who gave evidence in the case said that the men were attempting an ‘erasure of mother’ from their family, which he said did not reflect reality and was not in the best interests of the little boy at the heart of the legal battle.
The child, named as ‘Z’ in court proceedings, was born in September 2020.
His two fathers, a married couple aged 36 and 43, were friends with the surrogate’s sister and were desperate for a child to complete their family so she agreed to help.
After the transfer of a donor egg failed they decided to try an egg belonging to the surrogate, referred to as ‘G’ in legal proceedings.
The men, referred to as ‘X’ and ‘Y’, agreed that she would have contact with the child after it was born – but their relationship deteriorated during her pregnancy.
The couple claimed afterwards they became frightened that she would refuse to hand the baby to them after birth.
However, she did, although the 36-year-old did admit having fears that she would be cut out of the child’s life completely. Fears that would later be realised.
Soon afterwards she signed a parental order handing responsibility for the child to the men along with a second order ensuring that she could have regular contact with the child, who lived permanently with his dads.
But the gay couple reneged on that agreement – leading to the doorstep argument that sparked them threatening to dial 999 unless she left, the court heard.
‘G’ had secretly recorded the altercation and while the audio was not shared as part of the ruling, the judge in the case said it was ‘rightly described as “horrendous”,’ not least because it was in the presence of their son.
The men then pursued a series of legal cases against her that would cut ‘G’ from the boy’s life.
In the first case of its kind, the court had to consider whether a step-parent adoption order should be made, extinguishing the ties between the child and the surrogate.
The gay couple’s local authority even supported their case, opposed by the surrogate mother, who was represented by 1GC Family Law led by barrister Janet Bazley KC.
But the British courts have ruled in the surrogate’s favour.
It determined that it would not make a step-parent adoption order – meaning that the surrogate mother retains legal parentage and parental responsibility for the child.
Mrs Justice Theis ordered that the child would continue to live with the intended parents under a ‘lives with’ order and made a ‘spends time with’ order in the surrogate mother’s favour.
‘Whilst many surrogacy arrangements work very successfully, this case provides a graphic illustration of the difficulties that can be encountered if the arrangement breaks down’, the judge said.
She went on: ‘Z is clearly thriving in X and Y’s care. That is not in issue and G has never suggested should not live with them, for Z that security is there. Z has seen G recently and has expressed the wish to see her again’.
Mrs Justice Theis added: ‘I hope now that these decisions have been made the parties will be able to focus on the important issue in this case, namely, to take steps to seek appropriate therapy and support with the aim of seeking to repair their relationships, as the one thing that unites all the adults is ensuring that Z’s welfare needs are met.
‘This is now the opportunity for each of them to demonstrate to Z that they can work together and each play their part to ensure that is achieved’.
The case was first reported on by feminist writer Julie Bindel in The Critic this week.
‘In the space of a few years the term “motherless” has moved from an emotive description of absence to a positive identity argued for in court’, she wrote.
‘When celebrity couples introduce their surrogate children on social media the women who gave birth to them are rarely mentioned. The new babies are “welcomed” like they have been sent by special delivery.’
She added: ‘To the men, G was simply a surrogate womb to a motherless child. But to G and to Z, she was his mother’.