X And Y (Children), Re

In an international surrogacy case, the court must satisfy the statutory conditions for a parental order and authorise payments exceeding reasonable expenses under section 54(8) of the Human Fertilisation and Embryology Act 2008. The child’s lifelong welfare is paramount, but the court must continue scrutinising payments and the public-policy implications of commercial surrogacy. Relevant considerations include the sums involved, financial gain, the surrogate’s circumstances and the economic context. Where applicants acted genuinely and payments are not disproportionate, retrospective authorisation may be granted and parental orders made.

Mr and Mrs A applied for parental orders concerning two siblings born in India through separate surrogacy arrangements. The children were genetically related to Mr A and had lived with the applicants from shortly after birth. Payments had been made through the Indian clinic to the surrogate mothers and others, but the precise sums and their allocation were unclear. The applicants accepted that payments exceeded reasonable expenses and sought retrospective authorisation under section 54(8) of the Human Fertilisation and Embryology Act 2008.

The issues were whether authorisation was required, whether it could be granted retrospectively, and how the children’s welfare interacted with the statutory public-policy restriction on commercial surrogacy.

1. Parental orders made. The court was satisfied that the statutory conditions in section 54 of the Human Fertilisation and Embryology Act 2008 were met, subject to authorisation of payments under section 54(8).
2. The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 applied section 1 of the Adoption and Children Act 2002 to parental-order applications. The children’s welfare throughout their lives was therefore the paramount consideration.
3. Paramountcy did not remove the need to scrutinise payments under section 54(8). The court had to address public-policy concerns, including the risk that parental orders might legitimise the purchase of children overseas.
4. Relevant considerations included the amount and character of payments, any element of profit or financial reward, the surrogate mothers’ personal circumstances and the economic conditions in the country where the arrangement was made.
5. The applicants were genuine, the payments were not disproportionate and making the orders plainly served the children’s lifelong welfare. The payments were authorised retrospectively and parental orders were made.