IJ (A Child), Re

In an overseas surrogacy case, a Parental Order may be made where the conditions in Human Fertilisation and Embryology Act 2008, section 54(1)–(8), are satisfied, including any necessary retrospective approval of payments. The court’s discretion is governed by section 1 of the Adoption and Children Act 2002, with the child’s welfare as the decisive consideration. Overseas surrogacy cases create distinct legal and immigration difficulties, particularly where the surrogate is married. Routine notice to the Home Office is not required where the Border Agency has already been involved in the child’s immigration arrangements. Such cases should, at least for the present, continue to be heard in the High Court.

The applicants sought a Parental Order concerning a child born in Ukraine through a surrogacy arrangement. The arrangement was valid under Ukrainian law but involved payment beyond reasonable expenses and would have been invalid under domestic law. The child was conceived using donor eggs and the male applicant’s sperm, and was carried by a surrogate with no genetic connection to the child.

The court had previously made the Parental Order under section 54 of the Human Fertilisation and Embryology Act 2008 and reserved its reasons. The issues included satisfaction of the statutory conditions, retrospective approval of payments, the welfare-based exercise of the discretion, the child’s citizenship, and whether notice to the Home Office was required.

1. The court confirmed that the conditions in section 54(1)–(7) of the Human Fertilisation and Embryology Act 2008 were satisfied. The six-week consent requirement in section 54(7) was emphasised. In overseas cases, this may require a further consent because the law of the country concerned may require consent at or before birth or handover.

2. The payments made under the commercial surrogacy arrangement would otherwise have contravened section 54(8). Having investigated the payments through evidence, CAFCASS and the child’s solicitor, the court granted retrospective approval. The principles in R E X & Y (Foreign Surrogacy) [2009] 1 FLR 733 and R E S (Parental Order) [2010] 1 FLR 1156 were applied.

3. Once the statutory conditions were satisfied, a discretion arose to make the order. Following R E L [2010] EWHC 3146 (Fam), that discretion was governed by section 1 of the Adoption and Children Act 2002. On the evidence and the investigation by CAFCASS, the child’s best interests clearly required the making of the Parental Order.

4. The court considered the effect of a Parental Order on citizenship. Under paragraph 8.7 of the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, a child may acquire British citizenship where the order is made in the United Kingdom and one or both commissioning parents are British citizens.

5. Routine notice to the Home Office was not necessary in overseas surrogacy cases. The Border Agency would almost inevitably have been involved in the immigration arrangements. The position differed from cases involving an alien child lawfully in the United Kingdom in which an adoption application might confer citizenship and the Home Office had a real interest. The practice described in Re W (A Minor) (Adoption: Non-Patrial) [1986] 1 FLR 179 was therefore confined to its different adoption context.

6. The court reiterated that overseas surrogacy arrangements create serious domestic-law and immigration difficulties. Applicants should obtain advice from lawyers skilled in domestic law, rather than relying on overseas agencies. Such cases should continue to be heard in the High Court, at least for the time being.