D and L (Minors Surrogacy), Re: FD 28 Sep 2012

The children had been born in India to a surrogate mother. The biological father and his civil partner sought a parental order. The mother could not be found to give her consent. She had been provided anonymously through a clinic.
Held: The request was granted, and a retrospective authorisation given for the making of payments for the surrogacy: ‘the twin’s welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their dealings with the Court and the other authorities.’. The 2010 Regulations had introduced a new situation. Here the applicants had taken appropriate and reasonable steps to seek the mother, but without success.
Baker J summarised the position as regards the effect of having a paid surrogacy: ‘(1) The question whether a payment exceeds the level of ‘reasonable expenses’ is a matter of fact in each case. There is no conventionally- recognised quantum of expenses or capital sum: Re L, supra.
(2) The principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas: Re S, supra.
(3) On the other hand, as a result of the changes brought about by the 2010 Regulations, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the children’s welfare as the paramount consideration: Re L, supra, and Re X and Y (2011), supra, per the President.
(4) It is almost impossible to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: per Hedley J in Re X and Y (2008), approved by the President in Re X and Y (2011) at paragraph 40. It follows that: ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making’, per Hedley J in Re L at paragraph 10.
(5) Where the Applicants for a parental order are acting in good faith, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate to give retrospective authorisation, having regard to the paramountcy of the children’s welfare. !

Baker J
[2012] EWHC 2631 (Fam)
Bailii, Gazette
Human Fertilisation and Embryology Act 2008 54, Human Fertilisation and Embryology (Parental Orders) Regulations 2010 10
England and Wales
CitedIn re L (A Minor) (Commercial Surrogacy) FD 8-Dec-2010
The child had been born in Illinois as a result of a commercial surrogacy arrangement which would have been unlawful here. The parents applied for a parental order under the 2008 Act.
Held: The order was made, but in doing so he court had to . .
CitedIn re X and Y (Foreign Surrogacy) FD 9-Dec-2008
The court considered the approval required for an order under the 2002 Act.
Held: Welfare considerations were important but not paramount: ‘Given the permanent nature of the order under s.30, it seems reasonable that the court should adopt the . .
CitedIn Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
CitedIn re X and Y (Parental Order: Retrospective Authorisation of Payments) FD 6-Dec-2011
An application had been made for parental orders under section 57. The children X and Y had been born in India under surrogacy arrangements involving payments which were lawful in India, but which went beyond what could be paid.
Held: The . .
CitedIn Re S (Parental Order) FD 2009
Hedley J considered a Californian surrogacy arrangement in which USD $23,000 was paid.
Held: Hedley J considered the issue of authorisation in respect of a payment for a commercial surrogacy arrangement and set out further the approach the . .

Lists of cited by and citing cases may be incomplete.

Children, Health

Updated: 26 January 2022; Ref: scu.464867