ST (A Child) (Surrogacy: Iran) (Rev 1)

A parental order under Human Fertilisation and Embryology Act 2008, s 54, may be made where the statutory conditions are satisfied, including the requirements concerning the applicants, the child’s home and domicile, consent, and payments. Payments made under an overseas surrogacy arrangement may receive retrospective approval where they are proportionate to reasonable expenses, made in good faith, and have not overborne the surrogate’s will. The court must treat the child’s welfare as paramount and make the order only where it considers that doing so is better for the child than making no order.

The commissioning applicants, a married couple living in the United Kingdom, applied for a parental order concerning a child born in Iran following gestational surrogacy. The embryo was created using the commissioning father’s sperm and an anonymous Iranian egg donor. The surrogate, who remained involved in the proceedings, had given notarised consent and the applicants had made payments under the Iranian surrogacy agreement.

The central issues were whether the statutory conditions in s 54 of the Human Fertilisation and Embryology Act 2008 were satisfied, whether the payments should be retrospectively authorised, and whether making the order served the child’s welfare.

1. The court granted the parental order. The child had been carried by a woman who was not an applicant following embryo transfer, and the commissioning father’s gametes had been used. The applicants were married, applied within six months of the birth, had the child living with them, were domiciled in the United Kingdom, and were over 18. The requirements in s 54(1) to (5) of the Human Fertilisation and Embryology Act 2008 were therefore satisfied.

2. The surrogate had freely and with full understanding agreed unconditionally to the order. Her consent was supported by the circumstances in which the agreement was made, her legal advice, her continuing cooperation, and her later notarised consent. The technical requirements, including Pt 13.11(4) of the Family Procedure Rules 2010, were also satisfied. The requirements in s 54(6) and (7) were met.

3. The applicants had paid sums totalling less than £10,000 to the clinic and surrogate. Applying the approach reflected in Re X and Y [2008] EWHC 3030 (Fam) and subsequent authority, the court retrospectively approved the payments. They were not disproportionate to reasonable expenses, had been made in good faith, raised no public-policy concern, and had not overborne the surrogate’s will.

4. The child’s welfare was the paramount consideration. The court considered the available powers under s 54 and was satisfied that the parental order was better for the child than no order. The child was thriving and well cared for, and the Reporting Officer supported securing his place in the applicants’ family legally. The order consequently had a transformative effect on the child’s legal relationship with the applicants and ended the surrogate’s parental connection and responsibility.