Surrogacy is a fast-developing area of law. As surrogacy arrangements become increasingly common, we are seeing more and more cases come through the courts dealing with the fallout from surrogacy arrangements that have failed or where some element of the plan does not come to fruition.

The Court of Appeal has just published details of a case in which a surrogate and her husband refused to agree to the granting of a parental order, derailing the original plan.

Most cases involving the welfare of children are reported anonymously to protect the children's identities. For that reason, the significant people are referred to only by letters. In Re H (A Child) [2017] EWCA Civ 1798 a baby (H) was carried by a married surrogate (known as C). C and her husband (D) had entered into a surrogacy arrangement with a male same-sex couple, A and B, and a child was conceived from A's sperm and a donor's egg.

A and B had planned to bring H up and become the child's legal parents by means of a parental order. A parental order cannot be made unless the surrogate and if she is married or in a civil partnership her spouse or civil partner give their full consent, at least 6 weeks after the birth. This does not, however, mean that the surrogate has a right of veto as to where the child should live, only that they cannot be forced to agree to a parental order being granted.

C had acted as a surrogate twice before and had five other children. The parties met online, as is increasingly common, and the necessary fertility treatment took place at a clinic in Cyprus. Relations between the two couples broke down before the birth and C and D confirmed that they would not continue with the surrogacy arrangement as planned and would not consent to the grant of a parental order. A and B made an application to court and arrangements were put in place for them to have contact with the child. These arrangements developed into a shared care arrangement that persisted until the court dealt finally with the case.

The court needed to decide:

• Which couple the child should live with
• How much contact the child should have with the other couple
• The extent to which the other couple should make decisions about the child's life

Without a parental order, which is impossible without consent, the child's only legal parents were the surrogate and her husband, despite the fact that neither had any genetic connection to the child. As a result they automatically held parental responsibility for the child. The court had granted parental responsibility to A and B as a by-product of a court order dealing with the child's interim living arrangements.

The court made clear that while the circumstances of this case were unconventional, the approach to be taken is the same as in any case where there is disagreement as to a child's upbringing, summarised as follows: 'all things considered, which outcome will be best for the child?' These considerations would include the child's genetic origins, legal parentage and who carried the child as well as more commonly occurring aspects that go to build an overall picture of what is best for a child.

In this case, the Court of Appeal upheld the family court's original decision. This was for H to have his/her main home with A and B (the intended parents) but to have contact with C and D (the surrogate and her husband) six times per year. The judges disagreed that this was a parental order in all but name. C and D would continue to hold parental responsibility albeit that the day to day exercise of parental responsibility and decisions over medical treatment and education would rest with A and B. Furthermore, C and D would retain the right to apply to the court in case of a future dispute, something that a surrogate could not do after a parental order. The court stressed it was not punishing C and D, even though they had been described as 'having embarked on a deliberate and calculated course of conduct and as having continued to put obstacles in the way of A and B in seeking to establish a relationship with H.' It acknowledged that all four adults loved the child. They simply found that A and B were best placed to care for the child and to negotiate positively the complex familial structure the child had been born into.

So many cases like this end with a plea for reform of the law. This case was no different. I wholeheartedly agree with the court's comment that:

'This case is another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind.'

UK surrogacy law is complex and uncertain. Those looking to build a family through surrogacy cannot safeguard their and their intended child's legal situation in advance of the birth. Perhaps they should be able to do this in certain circumstances. On the other side of the equation, the ban on commercial surrogacy and the existence of tight restrictions on the involvement of legal and other professionals could be seen as barriers to the proper regulation of surrogacy, leaving surrogates and intended parents reliant on informal networks and contacts, risking the breakdown of these relationships at great emotional cost. While no reform of the law would be a complete solution to the many ethical and emotional issues that surrogacy raises, we could and should do a lot better.