The fathers insisted their son had no mother and there was no “vacancy” for her in his life

The love that can’t be erased

A recent court case exposed the surrogacy industry’s big lie


This article is taken from the June 2024 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

There is a contradiction at the heart of the international surrogacy industry. Its participants pretend that surrogates’ feelings for the children in their wombs do not exist, whilst simultaneously trying to prevent them acting on those feelings. Many commissioning parents broker the babies in jurisdictions that allow restrictions on surrogates’ rights.

In the UK, this contradiction was recently laid bare in a Family Court case (citation number: [2024] EWFC 20). A gay male couple were engaged in a long-running legal battle with their son’s surrogate. Rather than vanish after handing over the child, she wanted a role in the boy’s life. The men’s response was to insist that their son had no mother — only a surrogate — and that the child’s identity was as part of a motherless family. There was “no vacancy” for her to occupy in his life, they claimed, and it was prejudicial to gay families to suggest otherwise.

At the start of this story, G, the surrogate in question, was a 36-year-old single mother of a teenager and naive about what surrogacy entailed. The commissioning parents were friends of her sister but not people she knew. Aged 43 and 36 and married, they were members of an agency, Surrogacy UK, and very familiar with its protocols — which included a “getting to know you” period — and support. However rather than go through the agency, the men chose to fast-track the process with an independent arrangement with G.

Following a failed transfer of a donor egg, the trio decided to use G’s own egg. The men agreed that G would have contact with the child, but none of the parties properly considered the implications. The relationship between the three deteriorated during G’s pregnancy. G gave birth to a boy in September 2020.

After the birth, G would not initially consent to the parental order, under which she would lose parental responsibility as she feared being cut out of the child’s life. But during a lengthy online hearing in which she was alone and unrepresented — unlike the men — G was pressured by the judge to agree to the parental order along with a contact agreement called a child arrangements order.

After obtaining parental responsibility, the men quickly reneged on the agreement. When G turned up at their house for a pre-arranged visit they threatened to call the police. She recorded the meeting. The Family Court judge later declared of the recording “what was said has rightly been described as ‘horrendous’”. The men told G she was “harbouring a desire to have an inappropriate relationship” by wanting the boy to recognise her as his mother and accused her of having “rejected the role of surrogate”.

In January 2022, the men refused to allow G to visit her son and applied for the contact agreement to be changed. G then made her own application for the parental order to be overturned. She won her case in November the same year. This restored her parental responsibility for the child and removed it from the man who was not the child’s biological father.

The men redoubled their efforts to remove G as a parent, this time applying for an adoption order. During court proceedings, they claimed their son’s identity was that of a child of same-sex parents being raised within the LGBT community and that he belonged to a “motherless family”.

They accused G of homophobia, telling her: “There is no vacancy to fill just because [the baby] has same-sex parents.” Any maternal role for G would send a message that the gay family was incomplete or inadequate, they argued. The court-appointed Children’s Guardian also said the child would face stigma and prejudice for having same-sex parents and “it is important the right message is provided to him”.

As a lesbian who came out in the 1970s, I’m only too aware of the history of demonisation of lesbian and gay couples. Parents who conceived children in heterosexual relationships were often denied custody and contact if they came out as gay after separation. Foster and adoption agencies were openly prejudiced. But times have changed, and same-sex parents are now a common sight at the school gates in some parts of the UK.

Claims that the children of same-sex parents are disadvantaged in some way have largely been defeated with an expanding body of evidence (e.g. Zhang Y, Huang H, Wang M, et al., BMJ Global Health, 2023) showing their outcomes are similar to those of heterosexual families. Gay rights are robustly supported in most public institutions and private organisations. For a gay couple to call on historic prejudice to justify excluding a mother from a child’s life is unforgivable.

In any case, the men’s argument was fatally — and obviously — undermined by its own logic. If the boy did not have a mother, there would be no need for the court case.

As the jointly-instructed clinical psychologist in the case recognised, the driver of the men’s case was the “elephant in the room” — G’s existence as the child’s legal and biological mother — and the men’s fear of her maternal bond with her son. The men had difficulties “accepting the reality” of the child’s conception, the psychologist found, and considering what sense the boy might make of the situation as he grew up.

“They have strongly held to the surrogacy agreement and the narrative of [G] being a ‘surrogate’ because in that narrative there are no, or hardly any feelings from the surrogate for the baby,” the psychologist wrote. He described the men as attempting an “erasure of the mother”, which he said was not in the child’s best interest as it did not reflect reality.

Refusing an adoption order that would likely have resulted in cutting G from her son’s life, the court ruled that G should have direct and unsupervised contact with him. The judge criticised the men for blaming G for everything that went wrong. The judgment also raised questions about how an adoption order would be explained to the boy, given it would have been made without his mother’s consent.

To some extent, history repeated itself in this case. There are multiple examples of legal battles involving lesbian couples who created a child with the help of a sperm donor who later inconveniently insisted on contact or on playing the role of father.

As the Court of Appeal ruled in one such case in 2012: “What the adults look forward to before undertaking the hazards of conception, birth and the first experience of parenting may prove to be illusion or fantasy. [The couple] may have had the desire to create a two-parent lesbian nuclear family completely intact and free from fracture resulting from contact with the third parent. But such desires may be essentially selfish and may later insufficiently weigh the welfare and developing rights of the child that they have created.”

What’s concerning in this case is the language used — the “erasure” of the mother

Contested surrogacy cases are little different from these wrangles and, indeed, from any other contact disputes. What’s concerning about G’s case, and what makes it different from the case of the lesbian parents above, is the language used. The psychologist explicitly referred to the men’s attempted “erasure” of the mother. They simply refused to acknowledge G’s existence in any of the forms in which she fulfilled a maternal capacity: legal, genetic and as the person who gave birth. They were supported in this illusion by the professionals who weighed in on their behalf.

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. This shift is entirely consistent with the narrative that surrogacy participants feed to the public.

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” as if they have been sent by special delivery. That is in line with the attitude of the international surrogacy industry, which reduces the role of the birth mother to that of a “carrier” or rented womb.

For commissioning parents, it must be very easy to regard the woman who bore their child for nine months as a mere service provider, someone to be gratefully forgotten as soon as the final instalment is paid and the product handed over.

Meanwhile, parts of the NHS are determined to de-gender childbirth, routinely referring to “birthing parents” rather than mothers. As an example (there are multiple) the Royal United Hospital Bath’s “information for families” on labour induction refers to dads, but there is no mention of mothers — only birthing parents.

Feminists have long campaigned for gender-neutral language to reflect roles that are indeed, or can be, gender-neutral. But the uncoupling of sex from the necessarily female processes of pregnancy and childbirth is a step towards a dystopian future. In 2015 Victoria Smith wrote, “Gender-neutral language around reproduction creates the illusion of dismantling a hierarchy — when what you really end up doing is ignoring it.” I would go further. Gender-neutral language around reproduction — just like any language that obscures reality — reinforces and helps establish hierarchies of oppression.

To the men, G was simply a surrogate womb to a motherless child. But to G and to Z, she was his mother. As the psychologist said, “‘Motherlessness’ does not exist. The child was born from two people, biologically, and from three people, psychologically … The mother certainly played a part, biologically and psychologically, in the conception of the child.”

The case — unremarked and unnoticed by the media — will do nothing to change popular opinion of surrogacy. It is likely to encourage intending parents to explore dubious overseas jurisdictions, where surrogates have fewer rights. The surrogacy profiteers will continue to cheerlead wealthy couples in their exploitation of impoverished and naive women.

As for the word “motherless”: in time it may lose its negative connotations and become solidified as an identity. Will it become a badge that straight children can use to signal their connection to LGBTQ+ community? Or an oppression card that can be deployed by the children of wealthy men to explain bad behaviour towards women? Either way, Disney and Dickens are going to need a lot of rewriting.

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