X & Y (Foreign Surrogacy), Re

In an application for a parental order following foreign surrogacy, the court must apply the statutory parenthood provisions to the arrangement, including where the surrogate’s husband is domiciled abroad. A married surrogate’s husband may therefore be treated as the legal father under Human Fertilisation and Embryology Act 1990, requiring his consent where section 30 so provides.

Payments exceeding expenses reasonably incurred may be authorised retrospectively. The court should consider proportionality, the applicants’ good faith and absence of fraud, and the welfare of the child viewed from a lifelong perspective. Welfare is important but does not displace the public policy against commercial surrogacy.

The applicants, a married couple, commissioned a surrogacy arrangement in Ukraine. A Ukrainian woman gave birth to twins conceived using donor eggs and the male applicant’s sperm. Ukrainian law treated the applicants as the children’s parents, while the statutory scheme under English law potentially treated the surrogate and her husband as the legal parents.

The children consequently faced serious difficulties concerning legal parentage, immigration and nationality. The applicants applied for a parental order under section 30 of the Human Fertilisation and Embryology Act 1990. The central issues were whether the surrogate’s husband was a person whose consent was required, whether payments made under the arrangement could be authorised, and whether a parental order should be granted.

1. Parental order granted. The applicants satisfied the conditions in section 30(1) and sections 30(2)–(7) of the Human Fertilisation and Embryology Act 1990. The court made the parental order on 5 November 2008.
2. Legal parentage and consent. Section 27 treated the woman who carried the children as their legal mother, regardless of where the embryo was placed. Section 28(2), read with section 28(8), also applied to the Ukrainian husband. The statutory scheme was the law applicable to the parental-order application, and the husband’s foreign domicile did not prevent its application. His consent was therefore required under section 30(5). His consent had been validly given.
3. Payments. The payments substantially exceeded expenses reasonably incurred. Following Re C (Application by Mr. and Mrs. X under Section 30 of the Human Fertilisation and Embryology Act 1990 [2002] 1 FLR 909, retrospective authorisation was legally possible. The court considered whether the payment was disproportionate, whether the applicants acted in good faith without moral taint, and whether they attempted to defraud the authorities.
4. The payments were not so disproportionate, in the circumstances and having regard to local living costs, as to make authorisation an unacceptable affront to public policy. The applicants had acted in good faith and had not sought to defraud the authorities. Welfare was important but could not be paramount because section 30(7) embodied a public policy against commercial surrogacy. The appropriate perspective was the lifelong welfare of the children.
5. Discretion. Once the statutory conditions were met, the court had a discretion to make the order. The children’s lifelong welfare required that they be treated as members of the applicants’ family, and the order was accordingly made.

First-instance decision. No appellate history was stated in the judgment.