G and M, Re

In an international surrogacy case, parental orders may be made where the statutory conditions are satisfied, including the applicants’ domicile, biological connection, consent, timing and welfare requirements. A recent move to the jurisdiction does not prevent acquisition of a domicile of choice if the evidence establishes an intention to reside permanently or indefinitely. Payments made in a foreign commercial surrogacy arrangement may be authorised where they are not disproportionate to reasonable expenses and the applicants acted in good faith. The court must also address the possible interaction between foreign adoption procedures and section 83 of the Adoption and Children Act 2002, even where no breach is finally determined.

The applicants, a same-sex couple, sought parental orders for twins born in Iowa following a commercial gestational surrogacy arrangement. Each applicant had a biological connection to one child. Iowa proceedings terminated the surrogate parents’ legal relationships, established the relevant biological parentage and included an adoption by the non-biological applicant.

The children returned to England and remained in the applicants’ care. The court considered the possible effect of section 83 of the Adoption and Children Act 2002, the statutory conditions under section 54 of the Human Fertilisation and Embryology Act 2008, the applicants’ domicile, payments made under the arrangement and the children’s welfare.

1. The parental orders were made. The court was satisfied that the statutory requirements under section 54 of the Human Fertilisation and Embryology Act 2008 were met. The children had been carried by a woman who was not an applicant, each applicant had the required biological connection, the application was made within six months, the children’s home was with the applicants, both applicants were over 18, and the respondents had given free, unconditional and informed consent.

2. The applicants’ marriage in Iowa was recognised in England under section 10(1)(b) of the Marriage (Same Sex Couples) Act 2013. Their relationship therefore satisfied the relevant requirement in section 54.

3. For domicile, the question was one of fact. The applicants bore the burden of proving, on the balance of probabilities, abandonment of their domiciles of origin and acquisition of a domicile of choice. The residence need not be lengthy. The relevant question was whether they intended to make their home in England permanently or indefinitely. The purchase of a home, employment, taxation, financial arrangements, registration with health services, intended education of the children and the applicants’ stated intentions established that requirement.

4. The payments to the agency and surrogate were authorised under section 54(8). The court considered whether the sums were disproportionate to reasonable expenses and whether the applicants had acted in good faith or sought to evade legal requirements. The evidence showed good faith, compliance with relevant regulatory requirements and payments comparable with those in similar arrangements.

5. The court identified a potential difficulty under section 83 of the Adoption and Children Act 2002 because the Iowa proceedings included an adoption and the children were brought to England without the procedures contemplated by that provision. The issue was not finally determined. The court highlighted the need for specialist advice in both jurisdictions and suggested that the Department of Health consider whether such surrogacy arrangements were intended to fall within section 83.

6. Under section 1 of the Adoption and Children Act 2002, the children’s lifelong welfare was paramount. The evidence showed that their welfare could only be secured on the firmest legal footing by making parental orders.