K (Minors) (Foreign Surrogacy)

In foreign commercial surrogacy cases, an application for a parental order under Human Fertilisation & Embryology Act 1990, section 30, should not be treated as a formality. The court must be satisfied that it has jurisdiction, complete the required welfare assessment, and consider any application concerning payments. The court should not give an advisory indication that a parental order is likely to be made merely to assist an executive immigration decision. Entry clearance remains a matter for the executive. Where the children are outside the jurisdiction and the court cannot yet progress the parental-order application, the proper course may be to adjourn generally with liberty to restore.

The applicants were the intended parents of twins born in India following a commercial surrogacy arrangement. The children had been handed to them at birth but remained in India with grandparents, while the applicants lived in England.

The applicants had applied within six months for a parental order under section 30 of the Human Fertilisation & Embryology Act 1990. They also intended to seek entry clearance. The applicable immigration guidance required evidence that a parental order was likely to be granted. The issue was whether the court should express a view on that likelihood before the children entered England.

1. The application was adjourned generally with liberty to restore. The court made no order indicating the probable outcome of the parental-order application.
2. English law treated the surrogate mother and her husband as the children’s lawful parents until an appropriate parental order was made, following RE X&Y (Foreign Surrogacy) [2009] IFLR 733. The children’s position under Indian law was unclear, although their placement was accepted as lawful.
3. The court was not presently satisfied that the children were habitually resident in England and therefore questioned whether it had jurisdiction. In addition, the welfare assessment could not be completed until the Guardian had seen the children living with the applicants in England.
4. The court had substantial reservations about expressing an advisory opinion. It had to avoid usurping the executive function of deciding entry clearance. Advisory opinions, as distinct from declarations establishing rights or the lawfulness of conduct, were alien to the traditional practice of the court.
5. It was nevertheless clear, on a provisional view, that the requirements in section 30(1)–(6) were fulfilled. The Guardian identified no present warning signs, but her assessment remained provisional. The court also indicated that the payments issue under section 30(7) appeared capable of approval because the arrangement involved a publicly regulated clinic and non-negotiable sums prescribed by the clinic.
6. Those observations were not intended to bind or direct the Entry Clearance Officer. The parental-order application could proceed only if and when the children entered England.