Yesterday’s High Court ruling in favour of a biological mother whose child was born to a surrogate mother and who wanted to be acknowledged as the legal mother was a legal milestone.

The case presented surrogacy in a positive light. In fact, surrogacy is an ethical minefield throwing into sharp relief such questions as who is the ‘real’ mother of a child when two or more women have a hand in its creation.

There is also the distinct possibility of the exploitation of the almost invariably poor women who offer their wombs for rent.

Then there are some very hard cases that occur, for example, when the commissioning parents change their minds about having the baby at all.

In 2008, it was reported that a Japanese couple decided that they didn’t want a child that they had initially commissioned from an Indian surrogate mother. Ikufumi Yamada was due to adopt the girl with his then-wife Yuki Yamada but since their divorce she no longer wants anything to do with the child.
 
The law in India allows commercial surrogacy but does not allow single men to adopt which meant Mr Yamada, 41, could not take the baby from the hospital in Jaipur.

More recently, there was the case of Crystal Kelley, a US woman who agreed to be a surrogate mother for a couple in 2011.

All was well until five months into the pregnancy when an ultrasound showed that the child had a cleft lip and palate, a cyst in her brain and serious heart defects. They couldn’t see a stomach or a spleen.

The condition meant that the baby would need several heart surgeries after she was born. She would likely survive the pregnancy, but had only about a 25pc chance of having a “normal life,” the doctors said.

The commissioning couple then decided they didn’t want the baby after all offered Ms Kelley $10,000 to have an abortion. When she refused, the commissioning parents hired a lawyer and threatened to sue her if she didn’t go ahead and have the abortion.

On February 22, 2012, six days after the fateful ultrasound, Kelley received a letter informing her that she was “obligated to terminate this pregnancy immediately” and informing her that she’d signed a contract, agreeing to “abortion in case of severe fetus abnormality.”  

Ms Kelley was in breach of contract, the letter said, and if she did not abort, the parents would sue her to get back the fees they’d already paid her — around $8,000 — plus all of the medical expenses and legal fees.

When this failed, the parents threatened to exercise their legal right to take custody of their child — and then immediately after birth surrender her to the state of Connecticut. She would become a ward of the state.

Under state law, they were the parents, not her, and under Connecticut’s Safe Haven Act for Newborns, parents can voluntarily give up custody of a baby less than a month old without being arrested for child abandonment.

Her lawyer explained she could go to court and fight to get custody of the baby, or fight to appoint a guardian for the baby, but Connecticut law is very clear that the genetic parents are the legal parents, so she’d likely lose in court.

The only option was to move to a place where she, not the genetic parents, would be considered the baby’s legal mother. This led Ms Kelley to move to Michigan. She decided to give the child up for adoption.

However, the story didn’t end there. One month before the baby’s due date, the commissioning couple filed in Connecticut Superior Court for parental rights. They wanted to be the legal parents. They wanted their names on the birth certificate even though they have wanted the child to be aborted only a short time before.

The lawyers were still negotiating about who would be the legal parents when the baby was born June 25. Ultimately, the father agreed to give up his paternal rights as long as he and his wife could keep in touch with the adoptive family after the baby’s health.

It is easy to say that the commissioning parents in this case behaved appallingly; pressuring the surrogate mother to abort, then threatening to forcibly remove the child from her and make it a ward of state.

But surrogacy creates such situations. It splits motherhood, and it creates a maze of legal and emotional complications. Children become commodified, the subject of contract law.

As Geoffrey Shannon points out, any child in surrogacy could have up to five people involved; the surrogate mother, the egg donor, the sperm donor, and the commissioning mother and father.

This is why many European countries, including Austria, France, Germany and Italy, ban the practice and it is why the Government here should ban it too.