C (A Child), Re

For a parental order, the court must be satisfied that the statutory conditions in section 54 of the Human Fertilisation and Embryology Act 2008 are met and that the child’s lifelong welfare requires the order. Payments made in connection with an overseas surrogacy arrangement may be authorised where they are not disproportionate to reasonable expenses, the applicants have acted in good faith, and there is no attempt to defraud the authorities or other moral taint. Payments to an egg donor are outside section 54(8) where the donor is not involved in the matters specified there. The child’s lifelong welfare is assessed by reference to section 1 of the Adoption and Children Act 2002, with the child’s welfare as the paramount consideration.

A and B applied for a parental order in respect of C, a child born in 2012 following an overseas surrogacy arrangement. D carried C, and E was D’s husband. One applicant had a genetic connection with C. The applicants had returned with C to England, where he remained in their care.

The court considered whether the conditions in section 54 of the Human Fertilisation and Embryology Act 2008 were satisfied, including the effect of payments made to the surrogate, the agency and an egg donor. It also considered whether C’s lifelong welfare required a parental order.

1. The application was granted and a parental order was made. The court was satisfied that the statutory requirements in section 54 of the Human Fertilisation and Embryology Act 2008 were met. These included the applicants’ genetic connection and relationship, the timing of the application, their care of C, domicile, age, and the respondents’ valid and unconditional consents.
2. The payments made to the surrogate and the surrogacy agency required authorisation under section 54(8). In deciding whether to authorise them, the court considered whether the sums were disproportionate to reasonable expenses, whether the applicants had acted in good faith and without moral taint, and whether they had participated in any attempt to defraud the authorities.
3. The payments were authorised. They were not disproportionate, had not overborne the surrogate’s will, and were not an affront to public policy. The applicants had acted openly and cooperated with the authorities in the United States and England. The arrangement was not the simple purchase of a child overseas.
4. Medical treatment costs were not caught by section 54(8) where they represented expenses that would have been permissible had the treatment occurred in England. The separate payment to the egg donor was also outside section 54(8), because the donor was not involved in making the parental order, an agreement under subsection (6), handing over C, or making arrangements with a view to the order.
5. At the welfare stage, the court applied section 1(4) of the Adoption and Children Act 2002. C’s lifelong welfare, security and stability required the parental order. He was cherished and secure in the applicants’ care, and the order would secure his relationship with them on a long-term basis.