Orders in family proceedings - Parental order

D and L (children) (surrogacy): Family Division (Mr Justice Baker): 28 September 2012

The applicants were a male couple. They wished to start a family and, in September 2010, entered into a surrogacy agreement with a clinic in India. The applicants selected an anonymous Indian egg donor and it was agreed that the first applicant would be the genetic father of the children. In June 2011, the surrogate mother gave birth to twin boys. Two days later the applicants assumed responsibility for the children.

The applicants sought to obtain the consent of the mother to the making of a parental order. After the birth they received a document purportedly signed by the surrogate and a doctor providing an account of the children's birth and stating, inter alia, that '...there was no right or concern with the baby boys...' That purported consent was invalid for the purposes of section 54 of Human Fertilisation and Embryology Act 2008 having been provided less than six weeks after the birth.

The applicants provided the clinic with copies of the relevant form but did not receive any signed consent from the surrogate despite repeated requests. The applicants' subsequent attempt to locate the surrogate using an enquiry agent was also unsuccessful and it transpired that they had been given a false address. The applicants paid a total of $27,000 to the clinic for the surrogacy programme on the basis that the clinic would pay 'reasonable expenses' to the surrogate in the sum of approximately £4,000.

The applicants submitted formal applications for parental orders seeking to invoke section 54(7) of the Act which provided an exception to the requirement for consent where a person could not be found or was incapable to giving agreement. The county court directed the matter to be transferred to the High Court. Having granted the orders in July 2012, the court proceeded to give its reasons.

The issues were: (i) whether the court was satisfied as required by section 54(1)(a) and (b) of the Act, 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; (ii) whether the court could dispense with the agreement of the surrogate on the grounds that she could not be found; and (iii) whether the court should authorise retrospectively the payments given by the applicants in respect of the surrogacy. Consideration was given to the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, SI 2010/985 (the Regulations).

The court ruled: (1) On the evidence, the court was satisfied that the clinic's account of the circumstances of the twin's birth was true, that the children were carried by the surrogate, and that the provisions of section 54(1) of the Act were satisfied (see [24] of the judgment).

(2) When it was said that the woman who had given birth to the child could not be found, the court had to carefully scrutinise the evidence as to the efforts which had been taken to find her. It was only when reasonable steps had been taken to locate her without success that a court was likely to dispense with the need for valid consent. Although a consent given before the expiry of six weeks after the birth was not valid for the purposes of section 54 of the Act, the court was entitled to take into account evidence that the woman had given consent at earlier times to giving up the baby.

The weight attached to such earlier consent was, however, likely to be limited. In the light of the changes affected by the Regulations, the child's welfare was now the paramount consideration when the court was 'coming to a decision' in relation to the making of a parental order. It would, however, be wrong to utilise that provision as a means of avoiding the need to take all reasonable steps to obtain the woman's consent (see [28] of the judgment).

In the circumstances of the instant case, the agreement of the surrogate mother was not required on the grounds that she could not be found. The applicants had taken every reasonable step to obtain the surrogate's consent. There was no realistic prospect of finding the surrogate and it was not the applicants' fault that they had found themselves in the position that there had. The children's welfare was the paramount consideration, and any further delay in reaching a decision was likely to be prejudicial to their welfare. Further, there was no realistically no likelihood that the children would have any relationship with the surrogate, gestational mother, or any member of the family (see [31], [32], [34] of the judgment). G (children) (residence: same-sex partner), Re [2006] 4 All ER 241 considered.

(3) In the circumstances, the court was prepared to give retrospective authorisation for the payments made by the applicants in respect of the surrogacy. The children's welfare would unquestionably be enhanced by the making of parental orders. The court was satisfied that the applicants had acted in good faith and had been entirely candid in all their dealings with the court and the other authorities (see [38], [39] of the judgment).

Accordingly, all the requirements of section 54 of the Act had been satisfied and the court would make a parental order in the terms set out (see [40] of the judgment). X (children) (parental order: foreign surrogacy), Re [2009] All ER (D) 183 (Apr) considered; X and Y (children-foreign surrogacy), Re [2011] All ER (D) 64 (Dec) considered.

The applicants appeared in person; Jeremy Ford of CAFCASS Legal appeared as advocate to the court.