Mr William Zachs of Edinburgh complained that coverage in the Scottish Daily Mail about himself, his baby daughter and his partner during the week commencing 2 September 1996 gave details of their situation, named the child and revealed their address (including a photograph of the house on 2 September) in breach of Clause 4 (Privacy) of the Code of Practice.

The 2 September piece appeared under the headline "Gay parents outcry - surrogacy under fire as homosexual men take delivery of newborn girl" . It described how the complainant had fathered a child by a U.S. surrogate mother and how the baby had been brought to Edinburgh to live with the complainant and his male partner. Further pieces on 10 and 11 September were headlined "Go-between for gay parents is branded as a baby seller" and "Gay Britons join the rush for a surrogate child" respectively. 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 newspaper replied that two men bringing up a surrogate baby, one of whom is the biological father, was a legitimate news story of considerable public interest and a serious matter of public debate. The comments and reactions of those involved had therefore been sought with the proper care required by the Code. The newspaper also considered that the complainant had undermined his own claim to privacy by arranging for a freelance photograph of him with his daughter and his partner which was then syndicated.

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.

Even though there was great public interest in this case and there was legitimate debate on an important issue, the Commission did not believe that, in principle, the newspaper needed to report all the details of the family's private life. However, the mother of the surrogate baby had herself put some information into the public domain.

(The Commission noted that the complainant and his partner posed for a photograph with their daughter some time after the original stories, but believed that this was brought about both by force majeure of the media scrum and on the advice of their Member of Parliament. Such correct action - in circumstances which are dealt with below - was not a retrospective trump card for invasion into privacy, and the Commission did not therefore take this into account in making its finding.)

The matter for the Commission to consider, therefore, was how much information the newspaper was right to publish. In doing so, it found that while the news of the birth and the details of the men's names had in effect been made public by one of those involved, it was unsatisfactory for the newspaper to have published the forenames of the infant and details of the men's address including a photograph of their house, regardless of the fact that the street name was not given. As details which added nothing to legitimate public debate - providing only colour to a story which could have been written without them - publication was not within the spirit of the Code.

With that important caveat, the Commission found - however - that overall the newspaper could not be censured for its reporting when a considerable amount of information was in the public domain; the complaint of intrusion into privacy under Clause 4 was therefore not upheld.