Re X and Another (Foreign Surrogacy)
| Jurisdiction | England & Wales |
| Judgment Date | 2009 |
| Date | 2009 |
| Year | 2009 |
| Court | Unspecified Court |
Surrogacy arrangement – Child born under foreign surrogacy arrangement – Parental order – Retrospective authorisation of surrogacy payments – Married Ukrainian woman giving birth to twins pursuant to surrogacy arrangement with applicant British couple – Applicants seeking parental order – Whether applicants satisfying qualifying criteria for grant of order – Whether appropriate to retrospectively authorise surrogacy payments exceeding reasonable expenses – Human Fertilisation and Embryology Act 1990, ss 27, 28, 30.
The applicants, an established and successful professional couple, decided to seek a surrogacy arrangement in the Ukraine after unsuccessfully exploring parenting options in the United Kingdom. They agreed to pay a married Ukrainian woman (the surrogate mother) €235 per month during her pregnancy and a lump sum of €25,000 on the live birth of the child. The surrogate mother was subsequently implanted with embryos conceived with donor eggs (the donor being anonymous) and then fertilised by the male applicant’s sperm. In due course, she conceived and gave birth to twins. Under Ukrainian law, once she had given birth to the children and delivered them to the applicants, she and her husband were free of all obligation to the children; they had neither the status nor the rights and duties of parents. Furthemore, the children had no rights of residence in or citizenship of the Ukraine and the only obligation owed to them by the state was to accommodate them as an act of basic humanity in a state orphanage. The applicants became the parents for all purposes under Ukrainian law and were registered as such on the birth certificate when the children were born. However, under English law, the children had no right of entry into the UK as the applicants could not confer nationality on them and had no right to bring the children into the country. It was common ground that, at best, the male applicant could obtain leave to bring the children to the UK as a putative father or relative. It was also clear that under s 27 of the Human Fertilisation and Embryology Act 1990 the surrogate mother was, for all purposes, the sole legal mother of the children. Section 28(2) and (4) of that Act provided that, where a surrogate mother was married, her husband and no one else was to be treated as the father of the child unless he had not consented to the implanting of the embryo. The overall effect was that the children were effectively legal orphans and stateless. Subsequently, having satisfied the immigration authorities by DNA tests that the male applicant was the biological father of the children, the children were given
discretionary leave to enter ‘outside the rules’ to afford the applicants the opportunity to regularise their status under English law. The applicants sought a parental order under s 30 of the 1990 Act. The guardian appointed to represent the interests of the children submitted that the surrogate mother and her Ukrainian husband were the exclusive legal parents of the children and that, accordingly, (i) the consent of both was required under s 30(5) of the 1990 Act before a parental order could be made, and (ii) the male applicant had no right to apply for any order under Pt II of the Children Act 1989, unless he had first obtained the leave of the court pursuant to s 10 thereof. The applicants contended that s 28(2) and (4) of the 1990 Act should not be applied extra-territorially, that only the consent of the surrogate mother was required under s 30(5) of that Act, and that the male applicant was a parent for the purposes of Pt II of the 1989 Act. As the legal difficulties had been foreseen, the consent of the Ukrainian husband had been obtained and the applicants had been granted leave under s 10 of the 1989 Act so as to regularise the position pending the final hearing of the s 30 application. In the light of the applicants’ concession that the sums paid to the surrogate mother had significantly exceeded ‘expenses reasonably incurred’, a further issue arose as to whether the court should retrospectively authorise the payments pursuant to s 30(7) of the 1990 Act.
Held – (1) Parliament had intended to make particular provision for the husbands of surrogate mothers who consensually entered into surrogacy arrangements. Given the provisions of s 28(8) of the 1990 Act, Parliament could not be taken to have had any different intention in relation to husbands of foreign domicile. The intention of Parliament was to recognise the particular relevance of marriage in surrogacy arrangements; there was no reason why that should be affected by questions of domicile. It followed that s 28(2) also applied extra-territorially, meaning that the consent of the Ukrainian husband was required before a parental order could be made. It also followed that the male applicant required leave to apply for an order under s 8 of the 1989 Act. On the evidence, the Ukrainian husband’s consent had been lawfully given and the relevant permission had been granted.
(2) Although retrospective authorisation of surrogacy payments which exceeded expenses was legally possible, the 1990 Act offered no guidance as to the basis of any such approval. Welfare considerations were important and it seemed reasonable that the court should adopt the ‘lifelong’ perspective of welfare in the Adoption and Children Act 2002 rather than the ‘minority’ perspective of the 1989 Act, given the permanent nature of the order under s 30 of the 1990 Act. However, such considerations could not be paramount. In relation to the public policy issues, authority established that the court should ask itself three questions, namely (i) was the sum paid disproportionate to reasonable expenses, with the ascertainment of what amounted to ‘expenses reasonably incurred’ being a question of fact in each case; (ii) had the applicants acted in good faith and
without ‘moral taint’ in their dealings with the surrogate mother; and (iii) had the applicants been party to any attempt to defraud the authorities. The answer to the first question might vary considerably depending upon where the surrogacy arrangement had been made. In the instant case, although the sums paid significantly exceeded ‘expenses reasonably incurred’, they had not been so disproportionate that the granting of an order would be an unacceptable affront to public policy. Further, there was no doubt that the applicants had acted in good faith and that no advantage had been taken of the surrogate mother who was herself a woman of mature discretion. Moreover, there had never been any suggestion of any attempt to defraud the authorities; quite the opposite: the applicants had sought at all times to comply with the requirements of English and Ukrainian law as they believed them to be. The welfare of the children required that they be regarded as lifelong members of the applicants’ family and, given the findings on the public policy considerations, the payments made under s 30(7) of the 1990 Act would be authorised; Adoption Application No AA 212/86 (Surrogacy)[1987] 1 FCR 161, Re Q (parental order)[1996] 2 FCR 345 and Re C, Application by Mr and Mrs X under s 30 of the Human Fertilisation and Embryology Act 1990 [2002] 1 FLR 909 considered.
(3) On the facts of the instant case, the applicants had brought themselves within s 30(1) of the 1990 Act and had satisfied the requisite conditions in s 30(2) to (7) of that Act. Accordingly the court had discretion to grant them a parental order. Although the 1990 Act was silent as to criteria to be applied in exercising the discretion conferred by s 30(1), given the effect of a parental order was to confer status for life, it was difficult to see how applying any principle other than welfare with a ‘lifelong’ perspective would be apt in deciding the final discretionary stage of a s 30 application. Since the court was satisfied on that approach that the welfare of the children would best be served by the making of the parental order sought by the applicants, the application would be allowed.
Per curiam. The process of authorisation under s 30(7) of the 1990 Act requires the court to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (ie the child concerned) that rigour must be mitigated by the application of a consideration of that child’s welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order. If public policy is truly to be upheld, it would need to be enforced at a much earlier stage than the final hearing of a s 30 application. In relation to adoption this has been substantially addressed by rules surrounding the bringing of the
child into the country and by the provisions of the Adoptions with a Foreign Element Regulations 2005, SI 2005/392. The point of admission to this country is in some ways the final opportunity in reality to prevent the effective implementation of a commercial surrogacy agreement.
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