The Human Fertilisation and Embryology Act 2008 set up
provisions for people who have entered into a surrogacy agreement to obtain a parental order, giving them legal rights.
There have been a raft of recent authorities on these
applications, particularly relating to surrogacy arrangements overseas, the most recent being decided by Mrs Justice
Theis in Re AB and CD (Surrogacy: Time Limits) 2015  EWFC 12.
That case was complicated even further than is usual with
the HFEA because the applicants had moved from Australia to England after the
birth of the child, and had been pursuing an adoption application for the child
(believing that they were barred by the statute from applying for a parental
order for being out of time – which was the case prior to the President’s
decision in Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam) of which much more later).
Mrs Justice Theis stressed the benefits for commissioning couples
to get legal advice and make proper plans:
[5(1)] This case
highlights, once again, the need for those undertaking surrogacy arrangements
abroad to take specialist advice. In many of these cases large sums of money
are paid for the expenses in undertaking these arrangements. Figures in excess
of £15 - 20,000 are not uncommon. Commissioning parents should, at the very
least, get an outline of the relevant legal steps they need to take to ensure
their position and, more importantly that of any child born as a result of the
arrangement, is protected. The cost of that advice is likely to be a minimal
expense in the context of the large sums spent on the surrogacy arrangement
parents should be encouraged to:
(a) Promptly make applications
for parental orders after the birth of the child, even if they are not present
in the jurisdiction, providing at least one of them is domiciled in this
jurisdiction (s 54 (4)(b). It is only a parental order that provides lifelong
security for the child, as it recognises the commissioning parents as the legal
parents of the child with all the positive benefits that flow from that.
Without that order their legal relationship with the child is best described as
precarious; in most cases without such an order being in place, the surrogate
mother (and her husband, if she is married) remain the legal parents of the
(b) Take steps to
ensure there are clear lines of communication with the surrogate mother, and
her husband if she is married, to facilitate the giving of consent after the
expiry of six weeks from the birth (as required by section 54 (6) and (7)).
This should ideally include meeting the surrogate mother.
(c) Ensure there are
coherent records regarding any sums paid under any agreement, in particular
those that are paid to the surrogate mother.'
[Providing such legal advice is not without risk, as a
result of Mrs Justice King’s decision in Re JP v LP  EWHC 595 (Fam) that the statutory offence in s 2 of the Surrogacy Arrangements Act 1985
is capable of biting on a lawyer who charges for drawing up agreements:
surrogacy arrangements on a commercial basis, etc.
(1) No person shall on
a commercial basis do any of the following acts in the United Kingdom, that is—
(a) initiate or take
part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to
negotiate the making of a surrogacy arrangement, or
(c) compile any
information with a view to its use in making, or negotiating the making of,
and no person shall in
the United Kingdom knowingly cause another to do any of those acts on a
(2) A person who
contravenes subsection (1) above is guilty of an offence; ]
There were two parts of the Parliamentary provisions which
seem now to be more honoured in the breach than the observance. The first the
time limit in s 54(3) that the application MUST be made within 6 months
of the child’s birth, and the second the provision in s 54(8) for the court to scrutinise payments that have been made.
Why did those Parliamentary provisions come about? Well, much
of this relates to the public revulsion of the case of Mr and Mrs Kilshaw who
were pioneers in the early days of the internet and were the first people in
England to be publicly linked with buying a baby from overseas, paying £8,000 to
adopt twins from America.
http://news.bbc.co.uk/1/hi/uk_politics/1627061.stm Not being celebrities, it was of course not
acceptable for these people to circumvent adoption process and scrutiny by
making a cash payment. [Removes tongue from cheek]
The President in Re X disposed of s 54(3), in some judicial
sleight of hand, allowing a parental order to be made although the application
was made 2 years after the birth rather than the six months of the statute.
' Where in the
light of all this does the six-month period specified in section 54(3) stand?
Can Parliament really have intended that the gate should be barred forever if
the application for a parental order is lodged even one day late? I cannot
think so. Parliament has not explained its thinking, but given the
transcendental importance of a parental order, with its consequences stretching
many, many decades into the future, can it sensibly be thought that Parliament
intended the difference between six months and six months and one day to be
determinative and one day's delay to be fatal? I assume that Parliament
intended a sensible result. …
 I have considered
whether the result at which I have arrived is somehow precluded by the
linguistic structure of section 54, which provides that "the court may
make an order … if … the [relevant] conditions are satisfied." I do not
think so. Slavish submission to such a narrow and pedantic reading would simply
not give effect to any result that Parliament can sensibly be taken to have
 I conclude,
therefore, that section 54(3) does not have the effect of preventing the court
making an order merely because the application is made after the expiration of
the six month period. That is a conclusion which I come to, without reference
to the Convention and on a straightforward application of the principle in
Howard v Bodington (1877) 2 PD 203.'
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