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High Court warns couples seeking surrogate mothers abroad to get UK court order

The High Court has warned parents who commission surrogate children from abroad that they must obtain a ‘parental order’ in a UK court with six months of the birth.

Parental orders remove legal responsibility for surrogate children  from the birth parents and transfer it to the commissioning parents. Giving judgement in the case of a same sex couple who had travelled to California to hire a surrogate mother, Mrs Justice Theis noted that:

“…the legal relationship…between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without such an order being made. That can have long term legal consequences for the children and those who care for them.”

In G and J, the British couple had begun discussing a family soon after meeting in 2003. They decided against adoption due to the uncertainty and were unable to a hire surrogate mother because parental orders were not available to same sex couples until the 2010 introduction of the Human Fertilisation and Embryology Act.

The couple therefore contacted a surrogacy clinic in California but nine separate in-vitro fertilisation procedures involving two egg donors and four surrogates were all unsuccessful.

Later they contacted the Essex-based British Surrogacy Centre of California, which links potential parents with surrogate parents and egg donors from around the world. They were placed in contact with a married woman with whom they negotiated a fee of $56,750 plus expenses – a commercial arrangement legal under Californian law.

This time the men were more successful – the second procedure resulted in the birth of twins.

The issue they faced on return to the UK was one we have discussed elsewhere on this blog: commercial surrogacy is illegal in the UK. Under the Surrogacy Arrangements Act 1985, surrogate parents may not advertise or charge more than “reasonable expenses”. Even couples interested in finding a surrogate parent may not advertise this.

When the couple brought the twins back to their UK, their birth mother and her husband were the legal parents under English law. The only way to make the commissioning parents in surrogacy arrangements the children’s legal parents is via parental order. Without such an order, commissioning parents cannot make any decisions regarding the children.

The judge considered the fee the couple had paid to the surrogate mother. As is usual in such applications, she was invited to retrospectively authorise this and so had to consider whether it was proportionate and in line with UK law.

She concluded it was, and so “not an affront to public policy”.

The judge noted:

“There is no evidence to suggest that [the fee was] of such a level to overbear the will of the surrogate. The surrogate was an experienced surrogate; she had been one twice before. She is a mature woman with financial means. She had legal advice before entering into the agreement and was able to command a  higher compensation fee because of her proven track record.”

As in other areas of family law, judges are required to carefully consider the welfare and best interests of the children involved in applications for parental orders.

Mrs Justice Theis concluded that the same sex couple were:

“… a loving and committed same sex couple with a stable home environment.”

They had acted in “good faith and their journey to parenthood had “…clearly been a long and arduous one, both emotionally and financially.”

She declared:

“I am entirely satisfied the only order that will secure the lifelong welfare needs of each of these children is a parental order. Only that order will provide the lifelong security and stability that their welfare clearly demands.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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