The case states that a male same-sex couple (the intended fathers) entered into a surrogacy arrangement with an unrelated surrogate (M) using donor sperm and the surrogate’s eggs. M is the legal mother pursuant to s33 of the Human Fertilisation and Embryology Act (HFEA) 2008. Though the facts tell us that there was no legally binding arrangement, this is in fact the position of the law: under s1A Surrogacy Arrangements Act, no surrogacy arrangements can ever be binding on the parties.
It is not clear whether the donor sperm is from one of the same-sex couple or not. If it was donor sperm and not from either intended father, this is not an arrangement that would be recognised in law, as one of the men must be genetically related to the child in order for them to obtain legal parenthood via a parental order, under s54 HFEA…