A (A Child : Foreign Surrogacy : South Africa)

A parental order may be made following foreign surrogacy where the statutory conditions in Human Fertilisation and Embryology Act 2008, s 54, are satisfied and the order serves the child’s lifelong welfare needs under s 1 of the Adoption and Children Act 2002. The court must examine consent, domicile, timing, the child’s home, parental status, age and payments carefully. In assessing welfare, securing a consistent legal relationship between the child and those caring for her across relevant jurisdictions may be decisive.

H and M applied for a parental order in respect of A, born in South Africa following an altruistic surrogacy arrangement. A was conceived using M’s sperm and a donor egg. The surrogate mother lived in South Africa and consented to the order more than six weeks after A’s birth. The application raised the statutory requirements under s 54 of the Human Fertilisation and Embryology Act 2008, including domicile, consent and payments, together with A’s lifelong welfare under s 1 of the Adoption and Children Act 2002. The court also considered the South African court-supervised surrogacy process and the need to secure A’s legal status.

1. Application granted. The court was satisfied that the requirements of s 54 of the Human Fertilisation and Embryology Act 2008 were met.
2. There was a clear biological connection between M and A, and A had been carried by a surrogate mother. H and M had lived together since 1998 and were in an enduring family relationship within s 54(2)(c). The application was made within six months of A’s birth, A’s home was with the applicants, and both applicants were over 18.
3. H retained his domicile of origin in England. His residence abroad was connected with business interests, and he had no intention of making any foreign jurisdiction his permanent or indefinite home. The court applied the principles summarised in CC v DD [2014] EWHC 1307.
4. The surrogate mother’s notarised consent, given more than eight weeks after A’s birth, was free, unconditional and given with full understanding. Her cooperation with the South African procedure and the acknowledgement of service supported that conclusion.
5. The payments made were limited to expenses permitted under the South African legal provisions. The egg-donor payment was not caught by s 54(8).
6. Under s 1 of the Adoption and Children Act 2002, A’s lifelong welfare required her legal relationship with those caring for her to be placed on the most secure footing possible. Without a parental order, the surrogate mother remained A’s legal mother under English law. A parental order would provide consistency between her legal status in England and South Africa.