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(Family Division; McFarlane J; 28 November 2007)
Although not illegal, non-commercial surrogacy arrangements in which neither of the commissioning couple was domiciled in the UK were to be discouraged because the commissioning parents would be unable to apply for a parental order under Human Fertilisation and Embryology Act 1990, s 30. Agencies involved in facilitating surrogacy arrangements had to ensure that they were fully familiar with the basic requirements of the law in this area. All applications for parental orders under s 30 had to begin in the Family Proceedings Court, but as the issues raised could be of a similar standard of complexity and importance to those in cases of intercountry adoption there were strong grounds for any parental order application involving an international element being transferred to one of the nominated intercountry adoption county courts or to the High Court at the first directions hearing. If a s 30 application had, or might have, an international element, the court had a duty to ensure that each of the qualifying conditions had been met. When the prospective surrogate mother was a married woman, separated from her husband, all reasonable attempts should be made before the surrogacy process began to establish that the husband did not consent to the proposed surrogacy arrangement. Agencies or lawyers involved in facilitating or advising on surrogacy arrangements must advise couples not domiciled in the UK that, pursuant to Family Procedure (Adoption) Rules 2005, r 110, the 'court may at any time make such orders as to costs as it thinks just'. Such orders for costs could be made against the commissioning non-domicile couple and could include payment of the legal costs of the proceedings and payment for the costs incurred by CAFCASS. Given that the provision for surrogacy arrangements for non UK domicile couples was to be discouraged, any court faced with such an application should give active consideration to the making of a costs order.
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