S, Re

In an application for a parental order following foreign surrogacy, the applicants must satisfy the statutory conditions in section 30 of the Human Fertilisation and Embryology Act 1990, including the restriction on payments or benefits. Expenses qualify only to the extent that they are additional expenses reasonably incurred because of the surrogacy, rather than ordinary living costs. A payment may nevertheless be authorised where it does not involve the purchase of children, is not substantially disproportionate to reasonable expenses, and is not tainted by bad faith. The court must then consider the children’s welfare throughout their lives. Where section 30(7) requires serious consideration, the children should ordinarily have separate representation by a guardian.

A married couple applied under section 30 of the Human Fertilisation and Embryology Act 1990 for parental orders concerning twins born in California through a lawful gestational surrogacy arrangement. The applicants were the biological parents for the purposes of section 30(1), and a Californian court had declared them to be the children’s lawful parents before birth.

The statutory conditions were otherwise satisfied. The central issue was whether a payment of $23,000 to the surrogate mother contravened section 30(7), or should be authorised by the court. The court also considered whether making parental orders was in the children’s lifelong welfare interests.

1. The parental orders were made. The court was satisfied that the statutory requirements in section 30 of the Human Fertilisation and Embryology Act 1990 were met, including the consent requirements in section 30(5) and (6).

2. The burden lay on the applicants to establish that the payment did not offend section 30(7). Expenses reasonably incurred under that provision are limited to expenses additional to the surrogate’s ordinary expenses of life and incurred because of the surrogacy. The applicants could not account precisely for how the $23,000 had been used, and a significant element therefore contravened section 30(7).

3. Following the approach in Re X and Y (Foreign Surrogacy) [2009] 1 FLR 733, the court nevertheless authorised the payment. The arrangement did not involve the effective purchase of children, the payments were not greatly disproportionate to expenses reasonably incurred, and there was no bad faith. The public-policy concerns were to prevent commercial surrogacy from circumventing child-care safeguards, prevent child-buying arrangements, and guard against payments that overbear a surrogate’s will. The last concern did not arise on the facts of a United Kingdom–California arrangement.

4. The court was satisfied, on the welfare evidence, that making the orders was in the children’s interests viewed in a lifelong perspective.

5. Where section 30(7) requires serious consideration, the children should ordinarily be separately represented by a guardian. The absence of separate representation did not prevent orders being made because the court was comfortably satisfied that the payments should be approved. In a case involving serious doubt, the matter should be adjourned for appointment of a guardian and separate representation.