A and L (Children), Re

When deciding an application for a parental order, the court must scrutinise all payments made by the applicants in connection with the arrangement, not only payments made to the surrogate. Payments to a commercial agency may therefore fall within Human Fertilisation and Embryology Act 2008, section 54(8). The court should assess whether payments were disproportionate to reasonable expenses, whether the applicants acted in good faith and whether they attempted to defraud the authorities. Commercial profit does not ordinarily justify refusal where the arrangement was lawful in the jurisdiction concerned and the surrogate acted altruistically. The children’s lifelong welfare is paramount. Where welfare supports the order, refusal will generally be justified only in the clearest case of public-policy abuse.

MP and AH applied for parental orders concerning twins born in California through a gestational surrogacy arrangement with AM. The applicants were both biologically connected to the children and had cared for them since birth. The main issue concerned payments, including approximately $48,000 paid to the commercial agency and an estimated $21,500 profit element. The court also considered whether the applicants had acted in good faith and whether a later visit by the surrogate was caught by section 54(8). The court then considered the children’s lifelong welfare under section 1 of the Adoption and Children Act 2002.

1. The court was satisfied that the statutory criteria in section 54 of the Human Fertilisation and Embryology Act 2008 were met. The applicants were biologically connected to the children, lived together in an enduring family relationship, had applied within six months, provided the children’s home, were over eighteen, and had obtained the surrogate’s informed and unconditional consent.

2. Section 54(8) required scrutiny of the wider payments made by the applicants. Its language concerned payments made by the applicants, rather than only payments received by the surrogate. Payments to a commercial agency could therefore require consideration and authorisation where they included a profit element.

3. The payments received by the surrogate represented expenses reasonably incurred and did not require authorisation. The agency payments mainly covered medical, insurance and legal expenses, but approximately $21,500 represented profit. Applying the guidance in Re L (Commercial Surrogacy) [2010] EWHC 3146, the court considered whether the payment was disproportionate to reasonable expenses, whether the applicants acted in good faith and without moral taint, and whether they had attempted to defraud the authorities. Those questions were answered in the applicants’ favour, and the profit element was authorised.

4. The proposed visit by the surrogate and her daughter was not caught by section 54(8). It was an openly disclosed arrangement intended to maintain an appropriate relationship between the children and the surrogate, rather than a payment connected with obtaining the parental order.

5. Under section 1 of the Adoption and Children Act 2002, the children’s lifelong welfare was paramount. The lawful commercial framework and agency profit did not, in these circumstances, outweigh welfare considerations. Only the clearest case of public-policy abuse would justify withholding an order where welfare supported it. The parental orders were accordingly made.