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(Family Division, Theis J, 6 June 2013)
The two men, British citizens, residing in the UK entered into an agreement with the Centre for Surrogate Parenting. Sperm from each of them was used to conceive twins so that each was a father of one of the children. The now 10-month-old twins were born in California where paternity orders were granted before the birth and the children now lived in the UK with their fathers.
The men now sought parental orders pursuant to s 54 of the HFEA 2008. The only issue which called for close scrutiny was payments made during the course of the agreement and whether they constituted reasonably incurred expenses. The surrogate had been paid $17,700 to account for expenses including loss of wages, transportation, housekeeping, food and childcare. There was no compensation element to the payment which might have necessitated authorisation from the court.
However, an additional $48,000 was paid to the agency for medical procedures, legal matters but $21,500 appeared to be a profit element for the agency. In Re L (Commercial Surrogacy)  EWHC 3146 Hedley J concluded that a court when considering s 54(8), should not limit itself to looking at the payments that were made to the surrogate mother. The court needed to look at the wider picture and the circumstances in which payments were made, for example, to agencies such as the CSP. Where the welfare considerations demanded that an order should be made, the court would only in the clearest case of abuse of public policy consider not making an order; and the fact that an agency had made a profit where the surrogate had acted in an altruistic basis was a factor to take into account. The level of profit was unlikely, in circumstances such as here where it was in compliance with the legal framework in the country that it was entered into be a reason for refusing to make an order, save in the most exceptional case. The reality was there was a legal commercial framework which was driven by supply and demand.
On the evidence the sums paid were not disproportionate to the expenses incurred and the applicants had acted throughout in good faith. The court would authorise the payments made to the agency which were not referable to expenses.
Each of the children's welfare needs would be met by the grant of parental orders. Only that order would secure the lifelong welfare needs of each of the children, by securing their relationship with each of the applicants in a way that would provide them with long-term security and stability.
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