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Family Law

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09 DEC 2008

ADOPTION: Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam)

(Family Division; Hedley J; 9 December 2008)

The English husband and wife, a professional couple, made contact with a Ukrainian married couple who agreed that, in exchange for certain payments, the surrogate mother would be implanted with embryos conceived with donor eggs and fertilised by the English husband's sperm. The surrogate mother gave birth to twins, and the Ukrainian surrogate parents handed the children to the English husband and wife as agreed. Only at this stage did it become clear that, although under Ukrainian law the twins were not the children of the surrogate parents, and were not even entitled to reside in the Ukraine, under English law, specifically the Human Fertilisation and Embryology Act 1990, s 27, the surrogate mother was the mother of the twins, even though not related to them biologically. The English couple's extensive research into overseas surrogacy had not revealed that the twins would have no legal right of entry into the UK; indeed it emerged that under English law the English husband, the biological father, might not be treated as the legal father: under s 28 of the 1990 Act, the surrogate mother's husband seemed to be the legal father, having agreed to the surrogacy. Only after considerable difficulty were the twins able to enter England with the husband and wife; the husband and wife then applied for a parental order, with the full consent of the Ukrainian couple. The court was required to consider whether to authorise retrospectively the payments to the Ukrainian couple, which went beyond 'expenses reasonably incurred'.

Under English law the Ukrainian surrogate father was the legal father and his consent was required, even though under Ukrainian law the English husband was the legal father. The English father had therefore required leave to apply for an order under Children Act 1989, s 8. Retrospective authorisation was legally possible. When considering whether to recognise a commercial surrogacy arrangement as lawful, welfare considerations were important (on the 'lifelong' rather than 'minority' basis) but not paramount. It was very difficult to determine whether surrogacy payments were 'disproportionate' to reasonable expenses, but in this case the court was satisfied that the granting of a parental order would not be an affront to public policy. The payments were duly authorised, and the parental order made. Although not an issue in this case, it was notable that there was apparently no jurisdiction to extend the s 30(2) time limit of 6 months for issuing an application for a parental order; that could lead to problems in cases in which immigration problems caused delay.

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