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MAY 2010

Goodman Derrick LLP was instructed by a married couple in connection  with an application for Parental Orders in  respect to twin girls who  had been born in the United States as the result of a surrogacy  agreement.   The High Court handed down judgment on the matter in  April and the ruling is instructive because  it gives further guidance on the approach which the courts adopt in considering whether the sums paid to the  surrogate mother is  permissible.

The facts were as follows:

The couple concerned, Mr & Mrs A, entered into a surrogacy contract  in California. Under this arrangement, an anonymous woman donated three eggs  which were then fertilized by Mr A.    Two resulting embryos  were then successfully implanted into the surrogate mother.

The surrogate  mother gave birth to twin girls in California in April 2009. However prior to  the birth, a court order was obtained in California to establish that Mr &  Mrs A would be the children's legal parents on their birth and that the  surrogate mother would have no legal standing in relation to the children.

Under English law a  surrogacy contract is unenforceable and the legal parents are deemed to be the  surrogate mother and her husband even though neither of them has any  biological connection to the child.

Mr & Mrs A  brought the twins to the UK on temporary travel permits without passports  within a couple of months of their births.  They then instructed Tim  Langton at Goodman Derrick to regularise the girls’ status under UK  law.   Rather than go down a formal adoption route, which would  require the intervention of social services and a multiplicity of reports, Mr  & Mrs A applied for Parental Orders under s30 of the Human Fertilisation  and Embryology Act 1990.  If the Orders were obtained, Mr & Mrs A would then become the  children's legal parents.

The particular  difficulty in this case, as with most surrogacy applications, arose from the  fact that a significant amount of money (US$40,000) had been paid to the  surrogate mother. Unless it could be shown that the money had been used for her  reasonable expenses in relation to having the babies (e.g. lost income from  leaving work etc), there was a risk that the court might refuse the  applications.

Mr Justice Hedley  decided that a significant element of the payment did fall foul of the  provisions of the Act but then asked, “So where does this leave the court and  the children?”

The judge looked at  general issues of public policy, including both the risk of allowing what might  be seen as the “buying” of children and the possible financial coercement of  the surrogate mother.

In this case, Mr  Justice Hedley decided that despite the amounts paid, he would make the Parental Orders. He considered  that: Mr & Mrs A had paid the money in good faith, they would not have been  considered “at risk” parents in any way , the sums paid to the surrogate mother  were not greatly disproportionate to her actual expenses and it would  ultimately be in the children’s best interests to make the Orders.

The ruling is a  significant one since the payments made to the surrogate mother in  this case did not defeat the application for the Parental Orders, notwithstanding the fact that an  element of the payment to her was not simply for her expenses.  Each case  of course has to be considered on its own facts and excessive payments would  clearly put any other applications for Parental Orders at risk of failure for the reasons  the judge outlined.

If you would like any further information about the issues raised in this newsletter, or any other aspect of family law, please contact Tim Langton (tlangton@gdlaw.co.uk) or any other member of Goodman Derrick LLP's Family Department on 0207 404 0606.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.