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(Family Division; Hedley J; 9 November 2009)
The husband and wife applied for a parental order, under s 30 of Human Fertilisation and Embryology Act 1990, in respect of twin children who were the biological children of the husband and a surrogate mother. The arrangements for the children's conception and birth had been made in California, expressed in a Californian surrogacy agreement that was lawful and binding in California. in addition to substantial medical and legal expenses, the agreement provided for $23,000 to be given to the surrogate mother. Prior to the birth a Californian court had made a declaration that the applicants would be the lawful parents of the children. The applicants brought the children back to England on British passports within 3 weeks of the birth. The issue for the court lay in s 30(7), which required the court to be satisfied that no money or benefit had been given in consideration of the surrogacy. It was accepted that the applicants had entered into the agreement in good faith and without understanding that the agreement was not one that would be recognised under English law.
There was a problem for the courts in England and Wales as to the proper approach towards those who, unable to do something lawfully in this country, went overseas to do it perfectly lawfully according to that country and then sought retrospective approval in England and Wales. In this regard the court must be astute: (a) to ensure that commercial surrogacy arrangements were not used to circumvent childcare laws in this country, so as to result in the approval of arrangements in favour of people who would not have been approved as parents under any set of existing arrangements in this country; (b) not to be involved in anything that looked like the simple payment for effectively buying children overseas; (c) to ensure that sums of money that might look modest in themselves were not in fact of such substance that they overbore the will of a surrogate. The parental order would be made in this case as these applicants would not have been prevented from parenting children in this country, and the sums involved were not greatly disproportionate to expenses reasonably incurred. Whenever the issue of s 30(7) arose, the child should ordinarily be represented by a guardian.
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