If the pregnant party/surrogate mother, during the pregnancy, formed a bond with her unborn baby(s) such that she felt she could not give them up and so she decided to leave, give birth and keep the baby as her own, would she be guilty of kidnapping? Specifically, I'm asking would she be guilty of a criminal offence and not just a breach of the contract with the intended parents?
Edit: I'm from the UK so an answer based on UK laws would be appreciated
Under the Family Law Act, s. 29, surrogacy refers to a situation in which a child is conceived through assisted reproduction and there is a surrogacy agreement made. But even where there is a surrogacy agreement, the intended parents become the child's parents only if "after the child's birth, the surrogate gives written consent to surrender the child to an intended parent or the intended parents."
If the surrogate does not give this written consent to surrender:
Similarly, in Ontario, under the Children's Law Reform Act, s. 10, the intended parents become the child's parents only if the surrogate provides to the intended parent or parents "consent in writing relinquishing the surrogate's entitlement to parentage of the child." That consent "must not be provided before the child is seven days old."
It is not kidnapping or abduction under the Criminal Code for a guardian to go somewhere with one's own child when there are no other guardians.
Surrogacy is illegal in the first place. The contract for surrogacy is thus void and unenforceable in Germany. Acting as a placement agent for either a couple or a possible surrogate mother is also illegal. But note that is not an extraterritorial law and it does not illegalize wanting parents to seek out a surrogate or retaining one outside of Germany under the law of the country the surrogate resides in.
Under German law, the mother is by the law's definition only the woman who gave birth, so always the surrogate never the wanting mother. As a result of how the German law sees blood relations, the child is not a blood relative of the wanting mother and thus can not give the child German citizenship, nor does she have any right to the child.
A wanting father can not gain parenthood from a contract about surrogacy, but under certain circumstances he can can paternity of the child, e.g. via "Vaterschaftsanerkennung" or a "Vaterschaftsfeststellungsklage" ("paternity recognition" / "paternity declaration lawsuit").
Only under very niche circumstances, a court decree from outside Germany vesting parenthood with the wanting parents is accepted by Germany: At least one of the wanting parents needs to be genetically related but the surrogate can't be. That court decision needs to follow the legal situation in the source country's law about surrogacy and adoption.
Only when the child manages to qualify for German papers and has been given (e.g. a legal adoption happened) the child may actually be brought into Germany at all. source
In the united-kingdom it depends on whether the intended parents are the legal parents.
At the birth of the child, the birth mother is the legal mother.
To become the legal parents, the intended parents must apply for a 'parental order' and get consent from the current legal parents. A court will hear the application and will transfer legal parenthood if in the best interests of the child.
Assuming there is no court order requiring the child to be in some place under someone's care, if the legal parents have consented to moving the child around or outside of the UK then there has been no abduction or kidnapping or other offence.
Surrogacy is legal but surrogacy agreements are not enforceable.
Who the second legal parent is at birth depends on the circumstances.
If the birth mother - the surrogate - is married or in a civil partnership, her partner will be the second legal parent unless her partner did not consent to her treatment.
If the surrogate is single, then the sperm donor will be the second legal parent if he wants to be the father.
