This week’s blog looks at a recent case rejected by the Court of Criminal Appeal. The case involved a couple convicted of fraud after they were found to have invented a web of lies in an attempt to deceive a father into believing that a child was not his.
Mr N and Ms G had a sexual relationship as a result of which a baby B was born in February 2011.
The relationship between Mr N and Ms G broke down before the child was born and she informed him that she had had an abortion. In fact she proceeded to carry the baby to term as part of a plot which she had constructed with a gay male friend, Mr Y. They set up a fake Facebook page for an entirely fictitious Edinburgh woman who, they said, was going to be a surrogate mother for Mr Y. When the child was born Ms G and Mr Y jointly registered the birth showing her as the mother (which at least was true) and Mr Y as the father. If Mr Y and Ms G had actually been in a relationship at that time then they could have registered themselves as parents of any child born to a surrogate with the use of Mr Y’s sperm so long as the other criteria of The Human Fertilisation and Embryology Act had been satisfied.
They set up a fake Facebook page for an entirely fictitious Edinburgh woman who, they said, was going to be a surrogate mother for Mr Y
What actually happened was that a great construct of lies was set up which was intended to fool the Registrar, Mr N, and everybody else.
Very shortly after the birth Mr N happened to see a Facebook post on Ms G’s page showing the baby. Mr N thought the baby looked a lot like himself and his suspicions only grew when over a period of 2½ years Ms G refused to have a DNA test to prove or disprove paternity. Mr N took the case to court and even then Ms G and Mr Y denied what they had done.
Eventually the truth came out and the guilty couple were convicted of fraud and sent to prison for 3 years each. They were granted leave to appeal but in early January this year the appeal was refused. Lord Bracadale said:-
“The deceit was sustained over a period of years and it was only in the face of Court Orders that Mr Y agreed to provide a DNA sample. The impact of the offence on Mr N and the potential impact on baby B were significant”. In our view the Sheriff was entitled to characterise the offence in the way that he did and to conclude that a sentence of imprisonment in respect of both appellants was the only appropriate disposal…… We consider that having regard to the callous, complex and sustained nature of the fraudulent scheme of which the appellants were convicted the sentence selected by the Sheriff was appropriate…..”.
The custodial sentences and the Judge’s comments should, we hope, have the effect of deterring others from trying such a scheme which has prejudiced the interests of at least two perfectly innocent people.
…callous, complex and sustained nature of the fraudulent scheme…
The true rules surrounding Surrogacy are quite complex. The correct forms have to be completed in the correct order, and the couple do have to be counselled. The procedure has to be carried out within premises which are specifically licensed for the purpose, and the relevant authority (Human Fertilization and Embryology Authority) is very strict about ensuring that all the statutory requirements are satisfied. The main sanction for failure to go through the procedure properly is that the person who is not the natural parent does not become, in law, the child’s parent.
The rules surrounding surrogacy, and legally becoming a parent of a child to whom one is not related by blood, are complex, and there are many reported cases in which stable couples having intended openly and legally to become joint parents, have failed to be so due to a procedural slip. We can have some sympathy for these people. Sympathy for Mr Y and Ms G may be another matter.
