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Bad law makes hard cases

| Sep 14, 2015 | Divorce |


It is sometimes said about the law that hard cases make bad law. This means that difficult decisions often result in tortured rationales. But sometimes, the opposite is true, where a bad law results in a difficult case.

In a case involving a woman from Minnesota who was the surrogate mother and English man, who was the biological father, a British law has resulted in an absurd decision. A British court ruled that he could not be recognized as the father of the child because he is single. 


A court in the U.S. has recognized him as father, and the surrogate mother (he supplied the sperm and a donor egg) and social workers in both countries both approve of the recognition.

A British law from 2008 prohibits a single person from being recognized as a parent in this situation. At the same time, it allows couples, no matter their configuration, married, living together, heterosexual or same-sex, to be recognized as parent.

However, it prevents any single person from obtaining a child via surrogacy, no matter how good a parent they would make. Parliament apparently felt allowing a single individual to obtain a child by surrogacy was very different than permitting them to adopt.

Whatever their reasons, the result in this case is a child who could seemingly become a permanent ward of the court, absent legislative change. Perhaps this case will remove the discussion from abstract generalities and principles to the harsh reality of a baby deprived of his biological father.

It is possible that that this case could spur a change in this law.

Source:, “Baby boy trapped in legal limbo after family judge rules father has no legal rights over his son,” John Bingham, September 8, 2015