MR JUSTICE BAKER :
Introduction
- On 19th July
2012,
I made parental orders pursuant to s.54 of the Human Fertilisation and Embryology Act 2008 in
respect
of twin boys, whom I shall
refer
to as
D
and
L.
The proceedings give rise to a number of issues under the Act which have hitherto
received
little
if any judicial comment. For that
reason,
and notwithstanding the fact that the proceedings were uncontested, I am
delivering
a short judgement setting out my conclusions on those issues.
Background
- The applications for parental orders were made by a male couple (hereafter
referred
to as 'the Applicants') who went through a ceremony or marriage in Belgium in June 2008 and are therefore to be treated in this jurisdiction as civil partners. The first Applicant is a British citizen who has spent most of his
life
in this country. The second applicant comes from Belgium. Following their marriage, the Applicants
lived
initially in Belgium, then in India, but since August 2011 have
resided
in this country where they intend to
remain.
For some time, the Applicants
discussed
the possibility of starting a family, initially via adoption, but subsequently through
surrogacy.
They considered
surrogacy
in Europe but, feeling that they would need to find a surrogate from within their friends or family, concluded that that was not an option in their case. They then considered
surrogacy
in India after spending several months working and travelling in that country and becoming aware of the growing number of international
surrogacy
cases through Indian clinics. The Applicants' evidence, which I accept, is that from the outset they were
determined
that they would only proceed with a
surrogacy
arrangement if they were sure that they could satisfy the
requirements
of any applicable
laws
to establish joint parentage and obtain citizenship for any future child or children. They conducted
detailed
research
into the topic of
surrogacy
and sought advice from specialist solicitors, Natalie Gamble Associates. As a
result
of those
researches,
they
learnt
of the statutory provisions in the 2008 Act. In particular, they
learnt
that, in order to obtain a parental order, they would have to prove that the surrogate mother had given her
consent
to the order, and that such
consent
could only be given at
least
six weeks after the birth. The Applicants state that they therefore based all
discussions
with Indian clinics on the basis that this
requirement
would have to be fulfilled.
- The Applicants approached a total of six clinics in India and eventually selected the Kiran Clinic in Hyderabad which had, they understood, assisted a number of other British couples through the process of
surrogacy.
They had a number of
discussions
with the
director
of the clinic who advised them as to the various options and
local
practices. In particular, they were advised by the clinic that its policy, in
line
with professional guidance in India, was that they would not be allowed to meet the surrogate mother.
- On 30th August 2010, the Applicants selected an anonymous Indian egg
donor
from a short
list
of five candidates. It was agreed that the first Applicant would be the genetic father of the children.
- On 5th September 2010, the Applicants entered into a 'formal court
surrogacy
agreement' with the
director
of the clinic and a woman selected to be the surrogate mother, hereafter
referred
to as Miss B. This
lengthy
document
included the following provisions:
a) under clause 3.1, 'as part of her obligations under this agreement whereby the surrogate has agreed to carry a child with genetic father's sperm and genetic mother's egg, she may be
required
to submit to an IVF protocol in order to have
resulting
embryos transferred into her uterus';
b) under clause 9.1, ' the surrogate shall voluntarily surrender sole and exclusive custody, parental
responsibility,
decision
making, care and control of the child to the intended parents immediately upon the child's birth, acknowledging that it is in the best interests of all concerned to
do
so…';
c) under clause 10.1, '[the] intended parents agree to immediately accept custody and assume full
legal
responsibility
for the child born to the surrogate pursuant to this agreement. They shall take custody and
responsibility
for the child as soon as possible after the child's birth and after the necessary
releases
and/or
consents
have been signed by the surrogate…';
d)
under clause 11.1, '[the] intended parents shall pay costs and fees of any medical service provided and all of the surrogate's expenses including procedures,
diet,
screenings, prescriptions
deemed
necessary by the physical from the clinic…';
e) under clause 11.2, 'the parties herein have agreed onto an amount of $22,000 for the entire package of treatment and costs from IVF until the
delivery
of the child and including the surrogate's expenses mentioned in section 11.1'.
In an annexe to the agreement, it was further provided that the sum of $22,000 should be paid in the following instalments: $10,000 on advance; $5,000 after confirmation of pregnancy (at 15 weeks of pregnancy); $2,000 at six months of pregnancy and $5,000 at the time of
delivery/c-section.
The schedule also provided that there would be an extra of charge of $5,000 in the case of twins.
- Between 12th and 14th September 2010, the first Applicant attended the clinic and provided sperm samples for the fertilization of the
donor
eggs. On 25th October 2010, the embryo using the gametes of the first Applicant and the egg
donor
were transferred into Miss B. On 8th November 2010, the Applicants were informed that Miss B was pregnant and 23rd November that she was expecting twins.
During
the early part of 2011, the Applicants, who were at this stage
residing
in India, made enquiries of the clinic to establish the exact procedures that would be followed upon the birth of the children. They became somewhat uneasy about the
response
of the clinic to their enquiries. On 8th June, shortly before the expected
date
of
delivery,
the Applicants
received
an email from the clinic outlining some of the administrative processes surrounding the birth, including
details
of
registration
and passport applications. The email stated inter alia:
"There is a UK guideline which states the surrogate should be allowed about six weeks (since birth) to think over her
decision
of handing over the baby. But this again
depends
on the person assigned to you, it may be as short 3-4 weeks."
The Applicants were aware that this observation was not consistent with the provisions of the 2008 Act and immediately contacted their solicitors in England who on 13th June wrote to the
director
of the clinic pointing out that, in order to obtain a parental order under English
law,
the Applicants would have to prove that the surrogate mother had given her
consent
'fully and unconditionally' and that such
consent
was only valid if given more than six weeks after the birth. They pointed out that, where the surrogate mother is based outside the UK, the court has the power under rules to accept evidence of
consent
by way of a notarised statement. The solicitors proposed that they could prepare a written statement for the surrogate mother to sign, which would need to be translated into her first
language
and signed by her before a notary more than six weeks after the birth. The solicitors asked the clinic to confirm that the surrogate would be able to understand the written
document,
to identify the appropriate
language
for translation, and to confirm whether the clinic would be prepared to assist with arranging for the notarised signature more than six weeks after the birth. The
director
of the clinic
responded
to the solicitors assuring them that 'we would be happy to be of help' to the Applicants.
- On 14th June 2011, the surrogate Miss B gave birth to twin boys,
D
and
L,
at the Children's Hospital in Hyderabad. Two
days
later,
the Applicants arrived at Hyderabad and assumed
responsibility
for the babies. On 18th June, the twins were
discharged
from hospital into the care of the Applicants. The new family stayed together in a hotel in Hyderabad for a further ten
days
while paper work, including birth certificates, was finalised. The Applicants then took the boys to New
Delhi
to submit passport applications to the British High Commission. Whilst waiting for those passports, the Applicants and the twins stayed at the Applicant's
rented
accommodation in Jaipur.
- After the birth of the twins, the Applicants
received
a
document,
purportedly signed by Miss B and a
doctor,
described
as 'the caretaker/arranger', in the following terms:
"I, Miss B, (surrogate mother...
resident
of Bhanunagar, Andhra Pradesh),
received
a sum of 350,000 rupees towards surrogate mother compensation, food, travel,
living
expenses for the term October 2010-June 2011 and the caretaker/arranger [name]'s service charges from [the clinic
director]...and
I hereby
declare
myself solemnly and conformingly that there was no right or concern with the baby boys
D
and
L
born on 14th June 2011, given birth by me as gestational surrogate mother for [the first Applicant]. There may be no future allegations also
regarding
relations
with the babies by me or by any of my family members in any way. I further state that I have no objections to the provision of the exit visa to the baby boys
D
and
L.
I was
discharged
from the hospital in very good healthy condition."
- On 26th July 2011, the Applicants emailed to the
director
of the clinic copies of the
relevant
form in English for the purposes of the surrogate's
consent,
together with a translation into Hindi. Thereafter, via email and telephone calls, the clinic promised that the forms would be
returned.
At one point, they were told that the
return
of the forms was contingent upon the provision of further information about passports and exit visas, which was
duly
supplied by the Applicants. On 17th August, UK passports were issued for both twins. On 24th August, the Indian authorities issued exit visas allowing the children to
leave
India. That
day,
the Applicants flew out of New
Delhi
with the boys and arrived back in the UK on 25th August.
- At that stage, they had still to
receive
any signed
consent
from the surrogate mother. They made further
requests
to the
director
of the clinic, to no avail. On 13 September, the first Applicant emailed a
long
letter
to the
director,
setting a
deadline
for the production of the signed
consent,
and warning that if the
documents
were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants
received
a
DHL
package, purportedly from the
director
of the clinic, containing a single sheet of paper on which was printed an obscene gesture.
- Thereafter the Applicants considered trying to track
down
the surrogate at an address that had been provided to them. They were concerned, however, about the impact of any invasion of her privacy. They therefore
decided
to proceed with the application to the Court without the necessary written
consent.
- On 12th
December
2011, the Applicants submitted formal applications for parental orders under the 2008 Act to the Portsmouth County Court. On 16th
December,
Her Honour Judge Black gave preliminary
directions,
including a
direction
for a CAFCASS
report.
That
report,
dated
8th February
2012,
recommended
that a parental order be made in favour of the Applicants in
respect
of the twins, notwithstanding the fact that the surrogate mother had not given any valid
consent
after six weeks following the birth. On 26th March, however, Judge Black understandably took the view that the issue of
consent
needed further investigation and analysis. She therefore
directed
the Applicants to file evidence concerning the question of
consent
and a full skeleton argument in support. Those
documents
having been filed by the Applicants, who were by this stage acting in person, Judge Black subsequently
directed
that the matter be transferred to the High Court and
listed
before me.
- Following the hearing before Her Honour Judge Black in March, the Applicants sought the assistance of an enquiry agent to try to
locate
the surrogate mother. His
report
is included in the papers before me and
reads
inter alia:
"I am sorry to inform you that I could not
locate
Miss B. The address provided by the clinic where Miss B should be
residing
…is not the place where she
lives.
Property is currently empty but is former
residence
of [the caretaker/arranger]. His old clinic is on ground floor. Nobody there had any knowledge of Miss B or where she is
living
now. I have shown neighbours [identity] card of Miss B and they
did
not
recognise
her. I could not find out where she
lives
now and so could not get her to sign the forms."
- At a hearing on 28th May, I invited CAFCASS
legal
to act as advocate of the court and to prepare a
report
on the following issues;
a) any further steps that should be taken to establish the paternity of the twins;
b) any further steps that should be taken to obtain the agreement of any person
required
by the 2008 Act;
c) if the women who carried the twins could not be found, the factors to be taken into consideration by the court in
determining
whether to make parental orders under the Act in
respect
of the twins in the absence of her agreement;
d)
the factors to be taken into consideration by the court in
determining
whether to give
retrospective
authorisation to payments made by the Applicants in
respect
of the
surrogacy
and;
e) any further
legal
issues arising in
respect
of this application.
- Subsequently a
report
on behalf of CAFCASS
Legal
was prepared and filed by Mr Jeremy Ford
dealing
with the issues
requested
in my
directions.
I am extremely grateful to Mr Ford for his most helpful advice in this matter.
The
Law
- Before turning to the
detailed
provisions of section 54 of the 2008 Act, I
remind
myself of the important change to the
law
affected by the Human Fertilisation and Embryology (Parental Orders)
Regulations
2010.
Regulation
2 provides:
"The provisions of the 2002 Act [that is to say, the Adoption and Children Act 2002] set out in column 1 of Schedule 1 have effect in
relation
to parental orders made in England and Wales and applications for such orders as they have effect in
relation
to adoption orders and applications for such orders, subject to the modifications set out in column 2 of that Schedule.''
The effect of this provision is, inter alia, that section 1 of the 2002 Act applies to the making of parental orders in the following terms:
"(1) This section applies whenever a court is coming to a
decision
relating
to the making of a parental order in
relation
to a child.
(2) The paramount consideration of the court must be the child's welfare, throughout his
life.
(3) The court must at all times bear in mind that, in general, any
delay
in coming to the
decision
is
likely
to prejudice the child's welfare.
(4) The court must have
regard
to the following matters:
a) the child's ascertainable wishes and feelings
regarding
the
decision
(conceived in the
light
of the child's age and understanding),
b) the child's particular needs,
c) the
likely
effect on the child throughout his
life,
of having ceased to be a member of the original family and become the subject of a parental order,
d)
the child's age, sex, background and any infant child's characteristics which the court considers
relevant,
e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,
f) the
relationship
which the child has with
relatives,
and with any other person in
relation
to whom the court considered the
relationship
to be
relevant.
…
(6) The Court must always consider the whole range of powers available to it in the child's case (whether under section 54 of the Human Fertilisation and Embryology Act 2008, the Adoption and Children Act 2002 as applied by
regulation
2 of and Schedule 1.2 The Human Fertilisation and Embryology (Parental Orders)
Regulations
2010 or the Children Act 1989) and the Court must not make an order under that section or under the 2002 Act so applied unless it considers that making the order would be better for the child than not
doing
so.
(7) In this section, 'coming to a
decision
relating
to the making of a parental order in
relation
to a child' the
relation
to a court includes
a) coming to a
decision
in any proceedings where the orders that might be made by the court include a parental order (or the
revocation
of such an order) and
b) coming to a
decision
about granting
leave
in
respect
of any action (other than the initiation of proceedings in any court) which may be taken by an individual under this Act but
does
not include coming to a
decision
about granting
leaving
in any other circumstances.
(8) For the purposes of this section,
a)
references
to
relationships
are not confined to
legal
relationships,
b)
references
to a
relative,
in
relation
to a child, include the child's mother and father."
- Those principles, in particular the paramountcy principle set out in subsection (2) and the checklist set out in subsection (4,) guide the court in exercising its powers to make parental orders under section 54 of the 2008 Act, which
reads
as follows:
"(1) On an application made by two people ('the Applicants') the court may make an order providing for a child to be treated in
law
as the child of the Applicants if
a) the child has been carried by a woman who is not one of the Applicants, as a
result
of the placing in her of an embryo or sperm and eggs or her artificial insemination,
b) the gametes of at
least
one of the Applicants were used to bring about the creation of the embryo, and
c) the conditions in subsection (2) (8) are satisfied.
(2) The Applicants must be
a) husband and wife,
b) civil partners of each other, or
c) two persons who are
living
as partners in an enduring family
relationship
and are not within prohibited
degrees
of
relationship
in
relation
to each other.
(3) Except in a case falling within subsection (11), the Applicants must apply for the order
during
the period of six months beginning with the
day
in which the child is born.
(4) At the time of the application and the making of the order
a) the child's home must be with the Applicants and
b) either or both of the Applicants must be
domiciled
in theUnited Kingdom or in the Channel Islands or in the Isle of Man.
(5) At the time of the making of the order both the Applicants must have attained the age of 18.
(6) The court must be satisfied that both
a) the woman who carried the child and
b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7) Subsection (6)
does
not
require
the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her
less
than six weeks after the child's birth.
(8) The court must be satisfied that no money or other benefit (other than for the expenses
reasonably
incurred) have been given or
received
by either of the Applicants for or in consideration of
a) the making of the order,
b) any agreement
required
by subsection (6)
c) the handing over of the child to the Applicants or
d)
the making of arrangements for the view to the making of the order unless authorised by the court.
…
(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.
…"
The issues in this case
- Several of the provisions in section 54 are incontrovertibly satisfied in this case. The two Applicants have attained the age of 18 and, by virtue of their marriage in Belgium, are to be treated as civil partners in this country. The first applicant is
domiciled
in this country. Accepting, as I
do,
that the twins were born on the 14th June 2011, the applications for parental orders were made within six months of their births. At the time of the application, and at all points thereafter, the twins have
resided
with the Applicants.
- The
remaining
requirements
under section 54 are more contentious in this case and fall to the considered in greater
detail
under the following questions.
1) Is the court satisfied, as
required
by section 54 (1) (a) and (b), that the twins were carried by a woman as a
result
of the placing in her of an embryo, and that the gametes of the first Applicant were used to bring about the creation of the embryo?
2) As the surrogate has not given
consent
to the making of parental orders six weeks after the birth of the twins, can the court
dispense
with her agreement on the grounds that she cannot be found?
3) Should the court authorise
retrospectively
the payments given by the Applicants in
respect
of this
surrogacy?
The provisions of section 54 (1)
- There is clear evidence that the twins were born as a
result
of the first Applicant's sperm being used to create an embryo that was subsequently implanted in Miss B. Accepting, as I
do
without hesitation, the evidence of the Applicants in its entirety, there is to my mind no
doubt
that the first Applicant's supplied sperm, that the Applicants were informed that the embryo had been implanted in Miss B, that they were further informed shortly afterwards that she was expecting twins, that they were kept informed as to the progress of her pregnancy, that they subsequently took
responsibility
for newborn twins on 16th June which they were informed had been born to Miss B two
days
earlier and that they were supplied with a
document
purportedly signed by Miss B confirming that she had given birth to the twins as surrogate mother for the first applicant. The most striking evidence, however, is contained in photographs of the twins which show that they bear a striking
resemblance
to the first Applicant.
- In his admirably clear
document,
Mr Ford points out that the subsequent behaviour of the clinic concerning the address and
consent
of Miss B calls its credibility into question. In those circumstances, Mr Ford suggests that the court should consider
directing
DNA
testing to establish that the first Applicant is indeed the father of the twins.
- I have given careful consideration to this suggestion but
reached
a clear conclusion, without
requiring
DNA
evidence, that I am satisfied on the evidence that the clinic's account of the circumstances of the twin's birth is true, that the children were carried by Miss B, that the first Applicant is their father, and that the provisions of section 54 (1) are satisfied.
Dispensing
with
consent
- It is a very important element of the
surrogacy
law
in this country that a parental order should normally only be made with the
consent
of the woman who carried and gave birth to the child. The
reasons
for this provision are obvious. A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world. She is a "natural parent" of the child. As Baroness Hale of Richmond observed in
Re
G (Children) [2006] UKHL 43, at paragraphs 33-35,
So far as gestational parenthood is concerned, Baroness Hale observed (at paragraph 34) that the fact that in English
law
the woman who bears the child is
legally
the child's mother
"
recognises
a
deeper
truth: that the process of carrying a child and giving him (which may well be followed by breastfeeding for some months) brings with it, in the vast majority of cases, a very special
relationship
between mother and child, a
relationship
which is
different
from any other."
- The act of carrying and giving birth to a baby establishes a
relationship
with the child which is one of the most important
relationships
in
life.
It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give
consent
to the parental order. That is why the
law
style='mso-spacerun:yes'>
requires
that a period of six weeks must elapse before a valid
consent
to a parental order can be given.
- As set out above, the statue provides an exception to this
requirement
where the person who carried the child cannot be found or is incapable of giving agreement. The Applicants seek to invoke this exception here. So far as this court is aware, this provision in the Act has not been considered previously by any court. The question therefore arises as to how the provision should be interpreted and applied.
- Mr Ford submits, and I accept, that there are three matters which should be taken into account.
- First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all
reasonable
steps have been taken to
locate
her without success that a court is
likely
to
dispense
with the need for valid
consent.
Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the Applicants to
lay
the ground for satisfying these
requirements
at an early stage. Even where, as in this case, the Applicants
do
not meet the surrogate, they should establish clear
lines
of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware
during
the pregnancy that she will be
required
to give
consent
six weeks after the birth.
- Secondly, although a
consent
given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman
did
give
consent
at earlier times to giving up the baby. The weight attached to such earlier
consent
is, however,
likely
to be
limited.
The courts must be careful not to use such evidence to undermine the
legal
requirement
that a
consent
is only valid if given after six weeks.
- Thirdly, in the
light
of the changes affected by the 2010
regulations,
the child's welfare is now the paramount consideration when the court is "coming to a
decision"
in
relation
to the making of a parental order. Mr Ford submits, and I accept, that this includes
decisions
about whether to make an order without the
consent
of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving
consent.
It would, however, be wrong to utilise this provision as a means of avoiding the need to take all
reasonable
steps to attain the woman's
consent.
- Applying these principles to this case, I accept that these Applicants have taken all
reasonable
steps to obtain the woman's
consent.
- Through no fault of their own, they have been given a false address. If it is correct that she is
living
in the state of Andhra Pradesh, then she is one of many millions of women
living
in that state and there is in my judgment no
realistic
hope of finding her. I accept that it is not the Applicants' fault that they found themselves in this position. I am satisfied that they
reasonable
believed that the clinic and its staff would behave
responsibly.
It seems that they and the twins have been badly
let
down.
- I note that Miss B appears to have given her
consent
to the making of the parental orders at an earlier stage, although in the circumstances I treat all
documents
and information provided by the clinic with caution. The fact that Miss B appears to have given informal
consent
earlier is a factor to be taken into account but for the
reasons
set out above, it carries
little
weight in my
decision.
I
do,
however, take into account the fact that as a matter of
law
the children's welfare is my paramount consideration, and I further take into account that any further
delay
in
reaching
a
decision
is
likely
to be prejudicial to their welfare. I also take into account as
required
by the welfare checklist to be applied by virtue of the 2010
regulations,
that there is
realistically
no
likelihood
that the twins would have any
relationship
with the surrogate, gestational mother, or any member of her family.
- In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother Miss B is not
required
on the grounds that she cannot be found.
- In future cases, however, Applicants and their advisors should
learn
the
lessons
of this case, and take steps to ensure that clear
lines
of communication with the surrogate are established before the birth to facilitate the giving of
consent
after the expiry of the six week period.
Retrospective
authorisation of payments
- As set out above, section 54 (8) provides a condition of making a parental order that no money or other benefit (other than for expenses
reasonable
incurred) has been given or
received
by either of the applicant for or in consideration of the making of the order, any agreement
required
by the Act, the handing over of the child to the Applicants or the making of arrangements with the view to the making of the order, unless authorised by the court. The Applicants accept they have paid twenty seven thousand US
dollars
(which is approximately seventeen thousand pounds at current exchange rates) to the clinic for the
surrogacy
programme, on the basis that the clinic would then pay "
reasonable
expenses" to Miss B in the sum of three hundred and fifty thousand rupees, approximately four thousand pounds at current exchange rates. The Applicants accept that the sums paid exceed a
level
that could be
described
as "
reasonable
expenses". They therefore invite the court to give
retrospective
authorisation for the payments made.
- Unlike the question of
consent,
the issue of payments for
surrogacy,
and the basis upon which
retrospective
authorisation may be given, has been considered by the courts at first instance on several occasions in
recent
years, notably by Hedley J, who has played a
lead
role in the
development
of the
law
surrounding
surrogacy,
in four cases-
Re
X and Y (Foreign
Surrogacy)
[2008] EWHC 3030 (Fam),
Re
S (Parental Order) [2009] EWHC 2977 (Fam),
Re
L
(Commercial
Surrogacy)
[2010] EWHC 3146 (Fam) and
Re
IJ (Foreign
Surrogacy
Agreement Parental Order) [2011] EWHC 921 (Fam) - and, the most
recently,
the President Sir Nicholas Wall in
Re
X and Y (Parental Order:
Retrospective
Authorisation of Payments) [2011] EWHC 3147 (Fam). From these authorities the following principles emerge.
(1) The question whether a payment
exceeds the
level
of "
reasonable
expenses" is a matter of fact in each case.
There is no conventionally-
recognised
quantum of expenses or capital sum:
Re
L,
supra.
(2) The principles underpinning
section 54 (8), which must be
respected
by the court, is that it is contrary to
public policy to sanction excessive payments that effectively amount to buying
children from overseas:
Re
S,
supra.
(3) On the other hand, as a
result
of the changes brought about by the 2010
Regulations,
the
decision
whether to
authorise payments
retrospectively
is a
decision
relating
to a parental order
and in making that
decision,
the court must
regard
the children's welfare as
the paramount consideration:
Re
L,
supra, and
Re
X and Y (2011),
supra, per the President.
(4) It is almost impossible to
imagine a set of circumstances in which, by the time an application for a
parental order comes to court, the welfare of any child, particularly a foreign
child, would not be gravely compromised by a
refusal
to make the order: per
Hedley J in
Re
X and Y (2008),
approved by the President in
Re
X and
Y (2011) at paragraph 40. It follows that : "it will only be in the
clearest case of the abuse of public policy that the court will be able to
withhold an order if otherwise welfare considerations support its making", per
Hedley J in
Re
L
at paragraph
10.
(5) Where the Applicants for a
parental order are acting in good faith, with no attempt to
defraud
the
authorities, and the payments are not so
disproportionate
that the granting of
parental orders would be an affront to public policy, it will ordinarily be
appropriate to give
retrospective
authorisation, having
regard
to the
paramountcy of the children's welfare.
- In this case, the twin's welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their
dealings
with the Court and the other authorities. As I have set out above, the total sum paid equivalent to about £17,000. Although I
remind
myself that each case should be scrutinised on its own facts, I note that the total paid was somewhat
less
than that paid by the Applicants in the President's case
Re
X and Y (2011), which also involved a
surrogacy
arranged by an Indian clinic. In that case the President ruled that the sum paid was not so
disproportionate
that the granting of a parental order would be an affront to public policy.
- I am therefore prepared to give
retrospective
authorisation for the payments made by the Applicants in
respect
of the
surrogacy
arranged in this case.
- Accordingly, all the provisions of section 54 are satisfied and I therefore make a parental order for both twins in the following terms:
Upon the court being satisfied that
(1) the Applicants having been through a ceremony of marriage in Belgium are to be treated as civil partners in this jurisdiction (2) the application for parental orders was made within six months of the birth of the twins.
(3) at the time of the application the twin's home was with the Applicants
(4) at the time of the application both Applicants had attained the age of Eighteen
(5) that the first Applicant is the father of the twins
And upon the court being further
satisfied that the woman who carried the twins cannot be found and therefore
dispensing
with her agreement to the making of parental orders
And upon the court
retrospectively
authorising the payment of the sum of twenty seven thousand
dollars
paid by the
Applicants for the arrangement of the birth of the twins and being satisfied
that no other money or benefit has been given or
received
by the Applicants
under section 54 of the Act
And upon the court
directing
the
registrar
enter the
details
of the parental order made hereinbelow in the
parental order
register
And upon the court further
directing
that the original birth certificates of the children shall be
released
to the Applicants.
It is ordered that:
(1) there be parental orders
pursuant to section 54 provided that the children
D
and
L shall be treated as
the children of the Applicants
(2) there be
no order as to costs.