F & M (Children) (Thai Surrogacy) (Enduring family relationship), Re

Whether applicants are living as partners in an enduring family relationship under s 54(2)(c) of the Human Fertilisation and Embryology Act 2008 is a fact-sensitive question. Parliament imposed no minimum period. The court may consider the applicants’ commitment to parenthood, their shared experience of the surrogacy, their continuing relationship and the family life established with the child.

Payments in overseas commercial surrogacy cases must be disclosed and scrutinised under s 54(8). Parental orders should be refused only in the clearest case of abuse of public policy. Payments may be authorised where the applicants acted in good faith, disclosure was full and frank, and the payments did not overbear the surrogate’s will.

The applicants sought parental orders for twins born in Thailand through a commercial gestational surrogacy arrangement. The first applicant supplied the sperm and the eggs were donated. The surrogate consented to the orders and did not attend the hearing.

The court considered whether the applicants were living in an enduring family relationship, whether the statutory conditions concerning timing, residence, domicile, age and consent were satisfied, and whether payments made to the Thai clinic and surrogate should be authorised. It also considered the legality of the arrangement under Thai law and the children’s welfare and family life.

1. Parental orders made. The court authorised the relevant payments and made orders under Human Fertilisation and Embryology Act 2008, s 54, for both children.
2. Section 54(2)(c) requires a factual assessment of whether two people are living as partners in an enduring family relationship. The legislation contains no definition or minimum duration. Parliament intended the High Court to determine the question on the facts of each case.
3. The applicants had formed their relationship before conception, lived together, supported the surrogate during pregnancy and cared for the children jointly from birth. They had established family life with the children. The enduring-family-relationship requirement was therefore satisfied.
4. The other statutory conditions were met. The applications were timely, the children’s home was with the applicants, the domicile and age requirements were satisfied, and the surrogate had given informed and unconditional consent more than six weeks after birth.
5. Payments connected with overseas commercial surrogacy require full disclosure and careful scrutiny. The court must police public-policy concerns, including the risk of payments resembling the purchase of children or overbearing the surrogate’s will. Refusal is justified only in the clearest case of abuse of public policy.
6. The applicants acted in good faith and disclosed the payments as fully as the available evidence permitted. There was no evidence that the payments had suborned the surrogate’s will. The clinic payments, including profit and compensation elements, were authorised. A later gift was treated as gratitude after the arrangement had ended.
7. The children’s welfare was the overriding consideration. Making the orders was clearly in their welfare interests and was the appropriate means of recognising their established family identity and relationships.