Mr Mike Jempson of Presswise complained on behalf of Ms Teresa Duke and Mr Mark Wallace that an article published in the News of the World on 26 July 1998 headlined "Baby Nobody Wants" identified them in breach of Clause 3 (Privacy) and was inaccurate in breach of Clause 1 (Accuracy) of the Code of Practice. The article said that the complainants had engaged in an arrangement whereby another woman, Ms Claire Collier, would carry their test-tube baby as they could not have another child. The article alleged that the complainants had then "walked out on the deal" and that Ms Collier had not, by the date of publication, heard from the couple for a month. The article quoted at length Ms Collier's concerns and those of her partner (Mr Bradley) that the complainants no longer wanted the baby. The complainants denied that this was the case.

Initially, Mr Jempson of Presswise had complained on behalf of both couples and had relied on the submission of Ms Collier and her partner that the allegations which had been attributed to them were exaggerated or unfounded. However, in letters to Presswise, to the newspaper and to the Commission, Ms Collier and Mr Bradley later said that they had felt pressurised into furthering the complaint and that such disputes as had existed had been cleared up by the newspapers response.

The Commission's investigation had thus been unnecessarily complicated by the alleged complaint from Ms Collier and Mr Bradley which appeared to have been made against their wishes. As a result of this turn of events - where the couple who had made the allegations to the newspaper had withdrawn their complaint and now stood by the veracity of the story - the Commission could not conclude that Presswise had made out any case that Clause 1 had been breached. The article was very clearly the story of Ms Collier and Mr Bradley and it was apparent from the correspondence submitted on behalf of the complainants that the newspaper had made every reasonable effort to obtain their views on the matter. Letters from Ms Collier and Mr Bradley confirmed the accuracy of the story.

The Commission had therefore to consider only one remaining complaint - that the identification of Ms Duke and Mr Wallace constituted an invasion into their privacy.

The Commission has previously held (Zachs v The Herald et al) that surrogacy is a clear matter of public interest. In that case, the Commission had rejected the complaints of intrusion both on the grounds of public interest and because the surrogate mother had put into the public domain details about her baby and the donor couple. That complaint had raised a number of similar issues to those before the Commission in this case - the controversial subject matter was the same, the surrogate mother had made public comments about the donor couple, and the donor couple objected to being publicly identified. Then as now the Commission had to consider whether the amount of information published on such an important matter of public interest constituted an invasion of privacy.

In this case, it had been alleged that a couple (the complainants) who were involved in a surrogacy arrangement had changed their minds about wanting the child. Such a serious allegation - the substance of which according to the surrogate parents was accurate - was considered by the Commission to raise matters of very significant public interest about an area which is not governed by the law. These circumstances had been put into the public domain by the surrogate couple, who were legally responsible for the child and for the network of arrangements which surrounded the surrogacy, and the newspaper was rightly exercising its legitimate function in seeking information about the biological parents in order to check that the story was true.

The Commission noted that both sides accepted that the surrogate couple had originally asked the newspaper not to identify the complainants in the article. However, it appeared that the identity of the complainants had in fact eventually been given to the newspaper by Ms Collier herself and the Commission could not criticise the newspaper for construing this as permission to identify the donor couple and for them approaching the complainants about a matter of such importance.

Having approached the complainants for their comments - and been told that they did not wish to put their side of the story nor feature in the article - the editor took the decision that the identification of the complainants was central to the story. The Commission had to consider whether this conclusion was acceptable under the Code or whether it would have been realistic for the editor to have concealed the couples identity.

The Commission noted that both parties agreed that the subject matter of the article presented a matter of very significant public interest about which the newspaper was legitimately entitled to investigate and to comment upon. The circumstances of this case appeared to be unique - and the information had been clearly placed into the public domain by one of the couples involved. The article illustrated some of the problems that can arise in such a complicated area which is ungoverned by law and the consequences of allowing people, legally unlicensed, to enter into surrogacy arrangements. Indeed, the nature and history of this complaint underlined the very real legal minefield which the newspaper had been seeking to highlight. The apparent problems were distressing and clearly involved communication and relationship difficulties between the complainants and Ms Collier and Mr Bradley. The reporting of these, and the naming of both couples, highlighted the urgent reality of the problem. In these circumstances the Commission concluded that it would have been quite wrong to have expected one of the couples - who were at the centre of this very exceptional story - to remain nameless.

The complainants also alleged that photographs of them which accompanied the piece constituted an invasion into their privacy. They thought that the pictures had been taken when they were outside from one of two vans which were parked in their street. This version of events did not lead the Commission to consider that the couple would have had a reasonable expectation of privacy when they were photographed in a public place.

The complaints were not upheld.