Re L (Commercial Surrogacy)
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE HEDLEY,Mr. Justice Hedley |
| Judgment Date | 08 December 2010 |
| Neutral Citation | [2010] EWHC 3146 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD10P01027 |
| Date | 08 December 2010 |
[2010] EWHC 3146 (Fam)
Before: Mr. Justice Hedley
Case No: FD10P01027
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Ms. Lucy Theis Q.C. (instructed by Gamble & Ghevaert LLP)
Hearing dates: 15th October 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 8th December 2010. It consists of three pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Mr. Justice Hedley:
On 15th October 2010 I made a Parental Order pursuant to Section 54 of the Human Fertilisation and Embryology Act 2008 in favour of the applicants in respect of a child known as L. I decided to reserve my reasons, put them into writing and hand them down in due course. This I now do.
These reasons are given in open court and this judgment is accordingly anonymised. However, nothing may be reported which might reasonably lead to the identification of the child or her family. They are given in open court for two reasons: first, the 2008 Act has now replaced the 1990 Act; and secondly, there are still some issues that give rise to difficulty and may merit wider publication.
This case relates to a commercial surrogacy agreement made in Illinois, USA. There is no doubt that the agreement was wholly lawful under the law of Illinois just as there is no doubt that it would continue to be unlawful under the 2008 Act in this country. The reason is simple: no payments other than reasonable expenses are lawful here where no such restriction applies in Illinois. It is clear to me that payments in excess of reasonable expenses were made in this case.
Accordingly no parental order can be made unless those expenses are authorised retrospectively by the court pursuant to Section 54(8) of the 2008 Act. Those matters have been fully considered by this Court in the context of the 1990 Act—see RE X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) and RE S (Parental Order) [2009] EWHC 2977 (Fam).
It has to be accepted that in implementing the new Act, Parliament must be taken to have had in mind the accumulated jurisprudence under the 1990 Act. It is therefore significant that, with one material exception, Section 54 of the 2008 Act reproduces Section 30 of the 1990 Act. The exception is the widening of the categories of those who may apply and the making of ransitional provisions for those who have only become entitled to apply on the coming into force of the 2008 Act. It necessarily follows, with one significant change (relating to welfare), that the law in respect of Parental Orders is not affected by the new Act save as is noted above.
It is therefore unnecessary for me to set out in these reasons details of the factual matters which allowed me to conclude that the requirements of Section 54(1)-(7)...
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