Goodman Derrick LLP was instructed by a married couple in connection with an application for Parental Orders in relation 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 were 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.

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