Bad Law Makes Hard Cases

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 an English man, who was the biological father, 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 a 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 parents.

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 this case could spur a change in this law.