A mother who gave birth to twins after entering into a surrogacy agreement with an American couple must return to the United States to continue her battle for possession of the children, a High Court judge ruled yesterday.
Reversing an earlier decision, Mr Justice Hedley ruled that the Californian courts should decide the future of the six-month-old infants, who did not come from the eggs of their surrogate mother.
The ruling, which is expected to be finalised tomorrow, is a blow to the mother. She returned to Britain after falling out with the Californian husband and wife, with whom she had entered into a surrogacy agreement.
The couple, both lawyers, wanted a second child but only the husband was fertile. So they agreed that the surrogate mother would become pregnant using eggs from an anonymous donor and sperm from the man. The dispute arose when the parties realised the surrogate mother was carrying twins. She refused to have a "selective reduction" – terminating one foetus, in effect.
In February, four months after the twins were born, the judge blocked an attempt by the American couple to seek the return of the children under international laws on child abduction. At that time, Mr Justice Hedley said the surrogate mother could only be considered to be holding the children unlawfully in England if they had previously been "habitually resident" in California, which was not the case.
But yesterday he said that other legal provisions gave him the discretion to send the children back to California for the courts there to decide on their future. He said he recognised that the case was "Californian through and through".
Solicitors for the surrogate said she had not lost her battle and would challenge the ruling in the Court of Appeal.
The custody case, in which no names can be used and which is being heard in private, has been described as "unique" by the judge because of the complexities of the surrogacy arrangement.
Before his first judgment, Mr Justice Hedley warned that the case was an example of how advances in medical science were "racing ahead of our ethical grasp of the issues involved". While the pregnancy was a tribute to the scientific skills involved, the costs in terms of "human unhappiness" and the implications for the children should serve as a caution, he said.
He also pointed out that the father was the only one of the three adults involved in the deal who was related to any children born. Under the agreement, the couple were to pay for all the costs of the birth, which was to take place in California so that they could take immediate possession of the child.
But when the surrogate found she was carrying twins, she accused the American couple of threatening to default on their payments and applied for a declaration from a court in California that they had parental responsibility. The judge said she returned home before the court hearing and began to have "serious reservations about what she was doing". She then resolved to keep the twins and never return to California.
Mr Justice Hedley said yesterday that he had "serious concerns" about the case. He feared that the surrogate may not have her status of "mother" recognised in the Californian courts, where she could be regarded as a stranger in the legal argument.
But he said the surrogate had already asked the Californian courts to decide the matter and she must continue in that jurisdiction. "These children are caught up in a dispute not of their own making."