The High Court recently heard two remarkably similar international surrogacy cases.
In CC v DD, a married couple living in France were seeking a ‘parental order’ for a child born in the US, and in Re G and M, a same sex couple from France were seeking the same order for a set of twins also born in the US.
Under English law, the woman who gives birth to a child is its mother, even if they have used donor material to become pregnant. As a result, a parental order is required in surrogacy cases in order to transfer legal rights from the birth mother to the parents who will raise the child.
Mrs Justice Theis heard both cases at the High Court in London, and noted the complexities involved in international surrogacy agreements, calling them a “legal minefield”.
In both cases, the judge had to consider if the couples had breached section 83 of the Adoption and Children Act (ACA) 2002, which restricts the ability of prospective parents who live in the UK from bringing in adopted children from overseas.
“(1)This section applies where a person who is habitually resident in the British Islands (the “British resident”)—
(b)at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time.”
External adoptions are any adoption made in a foreign country.
In Re G and M, the parents had to apply for a decree of adoption in Iowa in order to comply with that state’s laws on surrogacy.
Mrs Justice Theis noted that this left them vulnerable to charges of breaching section 83 of the ACA 2002 and, if found guilty, even prosecution.
The judge remarked that the couple “were clearly between a rock and a hard place” with their legal situation but was satisfied that they “undertook these steps because they felt that was the best way of securing their legal relationship with M and G in the State of Iowa”.
She added there was “absolutely no suggestion” that the couple had “done anything other than act in good faith and complied with all relevant authorities both in the US and here”.
Similarly, in CC v DD, Mrs Justice Theis ruled that there had been no contravention of section 83.
Another legal hurdle to be cleared by both couples was section 54 of the Human Fertilisation & Embryology Act (HFEA) 2008, which lays out the circumstances under which a parental order can be made.
Specifically, it states:
“(4) At the time of the application and the making of the order—
(a) the child’s home must be with the applicants, and
(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.”
This presented a significant challenge in CC v DD, as the couple were living in France at the time.
However, the judge ruled that there was no requirement under section 54 for the child to be present in the jurisdiction, only that at least one of the prospective parents has a home in the UK.
She ruled that as the British mother had two properties in the country and intended to move back to England permanently as soon as circumstances allowed her husband to join her; this met the criteria set out in section 54.
Despite the same sex couple in Re G and M being French nationals, Mrs Justice Theis ruled that as they had set up a permanent residence in England, they too met the requirements to apply for a parental order.
The judge approved parental orders in both cases.