L (A Minor), Re

Under section 54 of the Human Fertilisation and Embryology Act 2008, payments exceeding reasonable expenses in a foreign commercial surrogacy arrangement require retrospective authorisation under section 54(8) before a parental order may be made. Payments described as compensation are prima facie beyond reasonable expenses, but each case must be scrutinised on its own facts. The welfare of the child is the paramount consideration. Where the statutory requirements are otherwise met, an order should be withheld for public-policy reasons only in the clearest case of abuse. Public-policy controls on commercial surrogacy are principally matters for regulation before the court process, including at the border or earlier.

The applicants sought a parental order concerning a child born under a commercial surrogacy agreement made in Illinois. The arrangement was lawful in Illinois but involved payments exceeding reasonable expenses, contrary to the position under the Human Fertilisation and Embryology Act 2008. On 15 October 2010 the court made the parental order and reserved its reasons.

The issues included whether the statutory conditions were met, whether the payments should be authorised retrospectively under section 54(8), and the effect of the new statutory welfare test and transitional provisions.

1. The court had made a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. The requirements in section 54(1)–(7) were satisfied.

2. Because payments exceeding reasonable expenses had been made under the foreign commercial surrogacy agreement, authorisation under section 54(8) was required. The policy principles identified in Re S (Parental Order) [2009] EWHC 2977 (Fam) continued to apply and were satisfied.

3. Payments described as compensation, or by a similar term, should be treated prima facie as exceeding reasonable expenses. No useful guidance can be obtained from conventional capital sums or conventional expense levels. The court must scrutinise each case on its own facts.

4. The six-month period for applying for a parental order is mandatory and cannot be extended by the court. The new Act otherwise preserved the parental-order law developed under the Human Fertilisation and Embryology Act 1990, subject to the changes identified in the judgment.

5. The 2010 Regulations made the child’s welfare the paramount consideration by importing section 1 of the Adoption and Children Act 2002. This decisively shifts the balance between welfare and public-policy considerations. Where welfare supports an order, it should be withheld for public-policy reasons only in the clearest case of abuse.

6. The court should nevertheless continue carefully to scrutinise applications under section 54(8) in order to police the relevant public-policy considerations. The parental order was therefore made and the payments were authorised.