Mr William Zachs of Edinburgh complained that an article in The Herald on 31 August 1996 headlined " Surrogate mother for male couple" which featured him, his baby daughter and his partner, gave details of their situation and explained that the men's surnames were given to the child, which enabled her to be identified, all of which intruded into their privacy in breach of Clause 4 (Privacy) of the Code of Practice.

The piece described how the complainant had fathered a child born to a surrogate mother in the U.S. and that the baby has been brought to Edinburgh to live with him and his male partner. Further pieces were later published in the newspaper which named his daughter but the complaint concerned the 31 August article which was the first to appear in the press and which the complainant considered was the genesis of widespread coverage in other newspapers. The complainant objected that while the issues of surrogacy and homosexual parenting might be a matter for public debate, the particulars of the birth of his daughter were a private matter - publication of which was not in the public interest.

The editor disagreed that the Code had been violated by publishing the mens names and by making reference to the complainant's daughter as these were matters of fact - and also with the complainant's contention that there was no "public interest" in publishing the story of a gay man, and a baby born to a surrogate mother living with the father and his male partner. There had been a great deal of public interest in both Britain and the U.S. about such issues and the editor provided copies of other stories published. Also the complainant had sent out invitations to his family and friends announcing details of the birth to his own circle. The editor also denied the newspaper had been involved in any events connected with the complainant's more general allegations of harassment by the press. The complainant had found insensitive the newspaper's letters to him and to his solicitors asking for his cooperation prior to publication. Although the newspaper made it clear that they intended to run a story anyway, they said the couple's input would provide a better balance and give an opportunity to control the way the information was presented.

The unique circumstances of this case posed complex problems relating to privacy and public interest for the Commission to consider. In doing so, it judged this complaint solely on its merits and was concerned that its adjudication should not be seen as a precedent.

The Commission agreed with the newspaper that the twin issues of surrogacy and homosexual parenting are clear matters of legitimate public interest. It is right - and important - that the press reports and comments on them.

That said, the Commission also agreed with the complainant that the privacy of all those involved in this particular story was, in principle, subject to the provisions of Clause 4 of the Code. In particular, the Commission considered that privacy should attach to the infant involved as much as to a child or an adult: one of the aspects of privacy is how intrusion into it affects the unfolding lives of those involved, and is therefore arguably all the more important where an infant is concerned. Under the Code, intrusions into an individual's private life are only acceptable where there is a legitimate matter of public interest at stake; in practice, where those directly involved in a contemporary story in effect act to put private information into the
public domain, entitlement to privacy is also undermined.

The newspaper was the first to report the birth - and did so responsibly and sympathetically. The Commission noted that, at the time, news of it was apparently already circulating in Edinburgh circles; indeed, it appeared likely that one of those who was aware of it from first hand had drawn it to the attention of the newspaper. The Commission also noted, however, that at the point at which the article was published there was very little information about the birth widely available in the public domain - although one of those involved subsequently cooperated with another publication to put key details there.

The matter for the Commission to consider, therefore, was whether the limited information published by the newspaper could realistically be considered private under the Code, and publication of it an intrusion into privacy.

In this case, the Commission considered that publication of news of a birth and of the names of the parents could not in effect be considered such an intrusion. Births in any country are recorded in documents which are publicly available - as are the names of the parents of a baby. Even without the consent of those involved, the Commission found that news of the birth could not therefore realistically have been kept private - especially in view of the public interest involved in the issue. Furthermore, the newspaper acted with responsibility and did not publish the forenames of the infant or details of the men's address - which were arguably far more private and, if published, might well have been in breach of the spirit of the Code.

The Commission found - therefore - that the newspaper could not be censured for its reporting when the relatively minor amount of private information it used in its article could not realistically have been kept private if the parents had wanted it so; the complaint of intrusion into privacy under Clause 4 was therefore not upheld.