G, Re

A parental order following surrogacy is available only where every statutory condition is satisfied. The domicile requirement in Human Fertilization and Embryology Act 1990, s 30(3)(b), is mandatory. A short stay in England does not establish domicile. Non-commercial surrogacy involving commissioning parents domiciled abroad is lawful in itself, but should be discouraged because a parental order will be unavailable. Where a parental order cannot be made, the court may consider an order under Adoption and Children Act 2002, s 84, provided its statutory requirements are met and the order serves the child’s lifelong welfare. In cases involving a married surrogate, the court must address the statutory presumption concerning her husband’s paternity and whether his lack of consent is established.

Mr and Mrs G, Turkish nationals domiciled in Turkey, entered into a surrogacy arrangement with Mrs J in England. Their child, M, was conceived using Mr G’s sperm and Mrs J’s egg. The couple applied for a parental order under Human Fertilization and Embryology Act 1990, s 30, but could not satisfy the domicile requirement. Mrs J remained married to Mr PJ, raising a further issue under s 28 concerning legal paternity and consent.

The court considered alternative arrangements, including residence, special guardianship, Convention adoption and the inherent jurisdiction. It ultimately made an order under Adoption and Children Act 2002, s 84, giving Mr and Mrs G parental responsibility so that they could pursue adoption in Turkey. The central issues were the effect of the domicile condition, the paternity consequences of a married surrogate, and the appropriate legal route for the child’s future adoption abroad.

1. Parental order unavailable. The domicile condition in Human Fertilization and Embryology Act 1990, s 30(3)(b), is expressed in mandatory terms. Neither commissioning parent was domiciled in the United Kingdom, the Channel Islands or the Isle of Man. Their limited presence in England did not alter their Turkish domicile. The court therefore had no jurisdiction to make a parental order: [15].
2. Other statutory conditions. The remaining relevant conditions were satisfied or capable of satisfaction, including the timing of the application, the child’s home, the applicants’ ages and the absence of prohibited payments. The court nevertheless had to ensure that every qualifying condition was met where an application had an international element: [13]-[16], [52](d).
3. Paternity and consent. Under s 27(1), Mrs J was the child’s legal mother. Section 28 displaced the common-law position unless it was shown that Mr PJ had not consented to the insemination. On the evidence, the court declared that he had not consented, with the result that Mr G was treated as M’s father: [30]-[37].
4. Meaning of consent. The court indicated that the absence of formal written consent under clinic procedures or guidelines would not, by itself, establish non-consent under s 28(2). The statutory question required a wider assessment of the evidence. This analysis was expressly recorded as not requiring determination on the submissions advanced by COTS: [38]-[39].
5. Alternative order. The court rejected residence and special guardianship because Mrs J would retain parental responsibility. A Convention adoption order was unsuitable because of the habitual-residence requirement and likely delay. An order under Adoption and Children Act 2002, s 84, could confer parental responsibility on intended overseas adopters and terminate Mrs J’s parental responsibility. The statutory requirements were satisfied, and expert evidence indicated that the order would be recognised in Turkey: [40]-[49].
6. Welfare and final order. Applying s 1 of the 2002 Act, the court held that the s 84 order was in M’s lifelong best interests and made the order to facilitate her subsequent adoption in Turkey: [49]-[50]. The court also gave guidance discouraging international surrogacy arrangements where the commissioning parents were not domiciled in the United Kingdom and urging early scrutiny of statutory conditions, paternity and costs: [51]-[52].