W, Re (Rev 1)

When deciding whether to make a parental order following an overseas surrogacy arrangement, the court must assess all statutory conditions and consider the wider circumstances of payments made to the surrogate and any agency. Payments exceeding reasonable expenses do not automatically require refusal. The court should consider proportionality, the applicants’ good faith, whether the surrogate’s will was overborne, any attempt to defraud authorities, circumvention of domestic childcare laws, and whether the arrangement amounted to buying children. The child’s lifelong welfare is paramount. Where welfare supports the order, refusal on public-policy grounds is appropriate only in the clearest case of abuse of public policy.

The applicants, the biological parents of three children born in the United States to a gestational surrogate, applied for parental orders under section 54 of the Human Fertilisation and Embryology Act 2008. The applicants were domiciled in the United Kingdom and had paid an agency and the surrogate, including sums exceeding reasonable expenses. The payments had been described inconsistently in documents placed before a Nevada court making a pre-birth order. The central issues were whether the statutory conditions were satisfied and whether the court should retrospectively authorise the payments.

1. The court made parental orders in favour of the applicants in respect of all three children. The biological, timing, age, consent, home and domicile requirements in section 54 were satisfied. The applicants had acquired United Kingdom domiciles of choice.
2. In exercising the discretion under section 54(8) of the Human Fertilisation and Embryology Act 2008, the court considered the wider picture of payments, including payments made to the surrogacy agency, rather than examining only sums paid directly to the surrogate. The approach in Re PM [2013] EWHC 2328 (Fam) was applied.
3. The relevant considerations, identified in Re X and Y (Foreign Surrogacy) [2009] 1 FLR 733 and Re S (Parental Order) [2010] 1 FLR 1156, included whether the payment was disproportionate to reasonable expenses; whether the applicants acted in good faith and without moral taint and without overbearing the surrogate’s will; whether they attempted to defraud authorities; whether commercial surrogacy was used to circumvent domestic childcare laws; and whether the arrangement involved simply buying children abroad.
4. The applicants acted in good faith, had relied on overseas legal advice, and had not actively participated in the omission of the gift schedule from the Nevada proceedings. The payments were substantial and unlawful under the Nevada provision then in force, but were not a criminal offence, did not induce or overbear the surrogate’s will, and were not outside amounts paid in comparable United States arrangements.
5. Following Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), the children’s welfare was the court’s paramount consideration. The payments did not constitute a clear case of abuse of public policy. The court therefore authorised the payments under section 54(8) and made the parental orders.