D And L (Minors Surrogacy), Re

In an application for parental orders following an international surrogacy, the court may dispense with the surrogate’s agreement where she cannot be found, but only after careful scrutiny of all reasonable efforts to locate her. Earlier indications of consent may be considered, although they carry limited weight because valid consent must be given at least six weeks after birth. The children’s welfare is paramount when deciding whether to make the order, including decisions about dispensing with consent and authorising payments. Payments exceeding reasonable expenses may be retrospectively authorised where the applicants acted in good faith, the payment is not so disproportionate as to affront public policy, and refusal would compromise the children’s welfare.

A male couple, treated as civil partners in England, applied for parental orders concerning twins born in India through a gestational surrogacy arrangement. The surrogate’s consent was not obtained after the statutory six-week period. The applicants had relied on the Indian clinic to arrange consent, but the address supplied for the surrogate was false and subsequent efforts to locate her failed.

The applicants had paid approximately US$27,000 to the clinic. The applications, initially made in the Portsmouth County Court, were transferred to the High Court after the county court directed further investigation of consent. The issues were whether the statutory parentage and timing conditions were satisfied, whether the surrogate’s agreement could be dispensed with, and whether the payments could be retrospectively authorised.

1. Parental orders granted. The statutory conditions concerning the twins’ birth following embryo transfer, the first applicant’s genetic parentage, the applicants’ status, domicile, age, timing of the applications and the children’s home were satisfied.
2. Under s.54(7) of the Human Fertilisation and Embryology Act 2008, the court may dispense with the surrogate’s agreement where she cannot be found. The court must scrutinise the efforts made to locate her. All reasonable steps must have been taken; token or half-hearted attempts are insufficient. Applicants should ordinarily establish reliable communications with the surrogate during the pregnancy and explain the need for consent after six weeks.
3. Consent given before six weeks is ineffective under s.54(7). Earlier evidence suggesting consent may nevertheless be considered, but it normally carries limited weight and cannot be used to undermine the statutory six-week safeguard. The applicants had taken all reasonable steps, and the surrogate’s agreement was therefore not required.
4. The children’s welfare was paramount under s.1 of the Adoption and Children Act 2002, as applied by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010. Welfare, including the likely prejudice caused by delay and the absence of any realistic relationship with the surrogate or her family, supported making the orders.
5. Payments exceeding reasonable expenses are not automatically fatal. The court must consider the facts of each case and the public policy against arrangements amounting in substance to buying children. Where applicants act in good faith, without deception, and the payment is not so disproportionate that making the order would affront public policy, retrospective authorisation will ordinarily be appropriate where welfare supports the order. The US$27,000 payment was authorised.
6. The court was satisfied on the evidence of the first applicant’s parentage and did not require DNA testing. There was no order as to costs.

The applications were initially made in the Portsmouth County Court. Following further investigation and written submissions on consent, they were transferred to the High Court. This judgment determined the applications at first instance.