J v G

When considering a parental order following an international surrogacy arrangement, the court must scrutinise payments and related conduct for the public-policy concerns identified in earlier authority. Those concerns include disproportionate payments, bad faith, circumvention of child-protection safeguards and arrangements resembling the purchase of children. However, where the child’s welfare is paramount, refusal will ordinarily be justified only in the clearest case of public-policy abuse. The court may retrospectively authorise payments under section 54(8) of the Human Fertilisation and Embryology Act 2008 where the statutory discretion is properly exercised. A parental order must be made where it is the only order securing the child’s lifelong welfare, provided the other statutory conditions are satisfied.

The applicants, British civil partners, applied for parental orders concerning twins born in California through a gestational surrogacy arrangement. The second applicant’s sperm was used and the eggs came from a donor. The first respondent carried the children, and the second respondent was her husband. The respondents consented to the applications.

The applicants had paid the surrogate USD 56,750, including compensation and payments connected with the pregnancy and birth. They sought retrospective authorisation under section 54(8) of the Human Fertilisation and Embryology Act 2008. The central issues were whether the statutory requirements were met, whether the payments should be authorised, and whether parental orders served the children’s lifelong welfare.

1. Statutory requirements. The conditions in section 54 of the Human Fertilisation and Embryology Act 2008 were satisfied. The children had been carried by a non-applicant following embryo transfer, the second applicant’s gametes had been used, the applicants were civil partners, the application was made within six months, the children lived with them, the applicants were domiciled in the United Kingdom and both were over 18.
2. Consent. The respondents had freely and unconditionally consented with full understanding of the consequences. The first respondent’s consent was given more than six weeks after the birth and complied with the procedural requirements in Part 13.11 of the Family Proceedings Rules 2010.
3. Payments and public policy. Applying the approach in Re X and Y [2008] EWHC 3030 (Fam) and Re S [2009] EWHC 2977 (Fam), the court considered whether the payments were disproportionate, whether the applicants acted in good faith and whether they sought to defraud or circumvent the authorities. The approach was subject to the later statutory position, under which welfare is paramount. As explained in Re L (a minor) [2010] EWHC 3146 (Fam), refusal will generally be appropriate only in the clearest case of public-policy abuse where welfare otherwise supports the order.
4. The payments did not overbear the surrogate’s will, the applicants acted in good faith, and there was no attempt to circumvent child-protection or other relevant authorities. The court therefore exercised its discretion under section 54(8) to authorise retrospectively the payments other than sums referable to identified expenses.
5. Welfare and orders. The children’s lifelong welfare was paramount. A parental order would confer joint legal parenthood and parental responsibility on the applicants, extinguish the respondents’ legal parenthood under English law, and secure the children’s British citizenship and permanent family life in the United Kingdom. It was the only order capable of securing their lifelong welfare. Parental orders were accordingly made.
6. The court emphasised that international surrogacy applicants should apply promptly, since applications must be made within six months of birth and the court has no power to extend that period.

First-instance decision. No appellate history was stated in the judgment.