WT (A Child), Re

A parental order under Human Fertilisation and Embryology Act 2008, section 54, requires strict compliance with the statutory criteria, particularly the surrogate mother’s free, unconditional and fully informed consent given at least six weeks after birth. Payments in foreign commercial surrogacy arrangements require retrospective authorisation where they exceed expenses reasonably incurred. The court must assess proportionality, public policy and the applicants’ good faith, while treating the child’s lifelong welfare as paramount. Refusal will ordinarily be confined to the clearest case of abuse of public policy where the other criteria are satisfied and welfare supports the order.

The applicants sought a parental order for WT, born in India following a foreign surrogacy arrangement. WT was carried by an unmarried surrogate mother after transfer of an embryo created using one applicant’s gametes and an anonymous donor egg. The arrangement was organised through an Indian clinic, and the applicants initially lacked independent legal advice and reliable evidence concerning the surrogate’s understanding of documents signed in English.

The central issues were whether the statutory conditions in section 54 of the Human Fertilisation and Embryology Act 2008 were met, including consent and payments, and whether a parental order promoted WT’s lifelong welfare.

1. Statutory criteria. The court was satisfied that the biological, relationship, timing, care, domicile, age and consent requirements in section 54 were met. WT had been in the applicants’ continuous care, and the application had been issued within six months of birth.
2. Consent. Consent by the surrogate mother is fundamental. The court must be satisfied that it is freely and unconditionally given, with full understanding of what is involved, and more than six weeks after birth. The evidence included the surrogacy agreement, notarised statements, Form A101A and independent confirmation by an Indian lawyer after the documents were explained to the surrogate. That evidence established compliance with section 54(6) and (7).
3. Payments. Under section 54(8), the court considered whether payments beyond reasonable expenses were disproportionate. The inquiry is fact-sensitive. The court must guard against both exploitation through inadequate payment and undue pressure through excessive payment. Public policy prohibits payments which effectively amount to buying children from overseas. However, retrospective authorisation is a decision relating to a parental order, so the child’s welfare is paramount. Where applicants act in good faith, without moral taint or attempted fraud, and the payments are not so disproportionate that an order would affront public policy, authorisation will ordinarily be appropriate.
4. Welfare and outcome. Under section 1 of the Adoption and Children Act 2002, WT’s lifelong welfare was paramount. The evidence showed that a parental order would meet his welfare needs and provide lifelong legal security. The payments were authorised and a parental order was made.
5. Guidance. Foreign surrogacy applicants should obtain specialist advice, retain an accurate payment schedule and documentary record, issue within six months, and ensure that the surrogate understands and independently consents to the order.