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 ‘lifelong’ perspective of welfare in the Adoption and Children Act 2002 rather than the ‘minority’ perspective of the Children Act 1989. On the other hand, given that there is a wholly valid public policy justification lying behind s.30 (7), welfare considerations cannot be paramount but, of course, are important’.
Hedley J commented that ‘no specific reason can be ascertained’ for the time limit in section 30(2) of the 1990 Act, and said: ‘Section 30(2) provides for a non-extendable time limit of 6 months from the date of birth for the issuing of the parental order application. This has been complied with in this case, but it is noteworthy that apparently there is no power to extend though no specific reason can be ascertained for that. That may especially cause problems where immigration issues have led to delay.’
Hedley J said: ‘I feel bound to observe that I find this process of authorisation most uncomfortable. What the court is required to do is 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 an 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. Bracewell J’s decision in Re AW (Adoption Application) [1993] 1 FLR 909 is but a vivid illustration of the problem. 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 section 30 application. In relation to adoption this has been substantially addressed by rules surrounding the bringing of the child into this country and by the provision of the Adoption with a Foreign Element Regulations 2005. 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. It is, of course, not for the court to suggest how (or even whether) action should be taken. I merely feel constrained to point out the problem.’
Considering section 30(7) of the 1990 Act, Hedley J said: ‘The statute affords no guidance as to the basis, however, of any such approval. It is clearly a policy decision that commercial surrogacy agreements should not be regarded as lawful; equally there is clearly recognition that sometimes there may be reasons to do so. It is difficult to see what reason Parliament might have in mind other than the welfare of the child under consideration. Given the permanent nature of the order under Section 30, it seems 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 Children Act 1989. On the other hand, given that there is a wholly valid public policy justification lying behind Section 30(7), welfare considerations cannot be paramount but, of course, are important. That approach accords with that adopted in the previous cases and also accords with the approach adopted towards the authorising of breaches of the adoption legislation. A particularly vivid example of this can be found in the judgment of Bracewell J in Re AW (Adoption Application) [1993] 1FLR 62. There the court was concerned in particular with serious (and indeed dishonest) breaches of Section 29 of the Adoption Act 1976 yet in the final striking of the balance between public policy considerations and the welfare of the child concerned the judge nevertheless made an interim adoption order.
In relation to the public policy issues, the cases in effect suggest (and I agree) that the court poses itself three questions:
was the sum paid disproportionate to reasonable expenses?
were the applicants acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother?
were the applicants’ party to any attempt to defraud the authorities?’
Judges:
Hedley J
Citations:
[2008] EWHC 3030 (Fam), [2009] 2 WLR 1274, [2009] 2 FCR 312, [2009] 1 FLR 733, [2009] Fam Law 115
Links:
Statutes:
Adoption and Children Act 2002, Children Act 1989, Human Fertilisation and Embryology Act 1990 30(7)
Jurisdiction:
England and Wales
Cited by:
Cited – Re IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .
Approved – In 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 . .
Cited – 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 . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – Whittington Hospital NHS Trust v XX SC 1-Apr-2020
A negligent delay in the diagnosis of her cancer left the clamant dependent on paid for surrogacy arrangements. Three issues were raised; could damages to fund surrogacy arrangements using the claimant’s own eggs be recovered? Second, if so, could . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 11 October 2022; Ref: scu.347369