In this case applicants who were civil partners with British citizenship had made an agreement through a surrogacy clinic in California. They had entered into an agreement with a woman to carry a child for them using a donated egg and sperm of one of the applicants.
The applicants instructed Californian lawyers and obtained parental status for the twins that were born. They brought the twins to the United Kingdom under US passports and then sought a parental order under the Human Fertilisation and Embryology Act 2008 in relation to them.
The surrogate and her husband had given their written consent and the surrogate had been paid a $53,000 “pregnancy compensation fee” which included payments for carrying twins and giving birth by caesarean section.
The Court granted the order and authorised the payment in spite of the fact that commercial surrogacy is a criminal offence in the United Kingdom.
The Court followed a common sense approach set out in previous cases on the basis of the following:
- It is necessary to take account of the public policy matters relating to surrogacy but in the light of the fact that where the child’s welfare requires an order to be made, the Court is only likely to refuse parental orders in the clearest case of abuse of public policy.
- The payment in this case was not so disproportionate to expenses reasonably incurred that the grant of the order would be an affront to public policy. The woman was experienced in acting as a surrogate and had financial means. She had received legal advice prior to entering into the agreement and was able to command a higher fee due to her proven experience and reliability.
- The applicants in this case had acted in good faith all the way through the matter, taking proper steps to comply with legal requirements of both the USA and the UK. In addition the applicants had made no attempt at any stage to circumvent the relevant authorities.
- The Court found that making a parental order would safeguard the children’s welfare on a lifelong basis. This was because a parental order confers joint and equal legal parenthood and parental responsibility on both applicants. It would ensure each child’s security and identity as lifelong members of the applicants’ family. A parental order also fully extinguishes the parental status of the surrogate and her husband in English law, which had already been done under Californian law. The order would also make each child a British citizen entitling them to live with their family on a permanent basis in the UK.
- The Court made it clear that children born following surrogacy arrangements do not have a secure legal relationship with their intended parents until a parental order is made. The Court made it known that parental order applications are to be encouraged in relation to children born following international surrogacy arrangements, and for parental orders to be made promptly in such circumstances.
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