C (A Child), Re

In an international surrogacy application, the court must examine each statutory condition for a parental order and separately decide whether to authorise payments made in connection with the arrangement. Payment is not automatically fatal. The court should consider proportionality, good faith, moral taint and any attempt to defraud the authorities. The child’s lifelong welfare is paramount. A parental order may be required to end legal uncertainty where the commissioning parents provide permanent care but lack legal parenthood under English law.

The applicants sought a parental order under Human Fertilisation and Embryology Act 2008, section 54, for C, born in Russia following IVF using the first applicant’s sperm, an anonymous donor’s eggs and a married Russian surrogate. The surrogate and her husband were respondents and consented.

The issues were whether the statutory conditions were satisfied, whether payments to the agency and surrogate should be authorised, and whether the order met C’s lifelong welfare needs.

1. Parental order made. The court was satisfied that the statutory requirements under section 54 of the Human Fertilisation and Embryology Act 2008 were met, including genetic connection, marriage, timing, care, domicile, age and consent.
2. The surrogate’s consent was effective because it was given more than six weeks after C’s birth. Her husband was the legal father under section 35 and his consent was required. The written consents complied with rule 13.11 of the Family Proceedings Rules 2010.
3. Under section 54(8), payment was not automatically fatal. The court considered proportionality to reasonable expenses, the applicants’ good faith and absence of moral taint, and whether they had attempted to defraud the authorities. The payments were authorised. The guidance in Re X and Y [2008] EWHC 3030 (Fam) was applied.
4. C’s lifelong welfare was paramount under section 1 of the Adoption and Children Act 2002. Without an order, C would remain in a legal vacuum. The order secured his legal identity, inheritance, financial support and family membership.