It often comes as a surprise to clients that there are no international treaties or reciprocal arrangements currently in force that govern the cross-border recognition of legal parentage in cases of surrogacy. For families resident in the UK, an application for a parental order in England is usually required to secure legal parentage in this country.
A post-birth court order - a parental order - is required in England to extinguish the rights and responsibilities of the surrogate mother (who would otherwise be recognised in law as a legal parent) and to make the intended parent or parents the legal parent(s) of the child. When the court makes a parental order, it is required to consider the criteria under s.54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008).
A recent application for parental orders in a case of twins born in Georgia to a same sex couple has emphasised the importance of the HFEA 2008 criteria being satisfied and sent a reminder that the court will consider whether there is a public policy bar to making a parental order Y & Anor v V & Ors [2022] EWFC 120 (13 October 2022) (bailii.org).
The case concerned a same-sex couple (Y and Z) living in Thailand who entered into a surrogacy arrangement in Georgia, notwithstanding that surrogacy is not permitted for same-sex couples in Georgia. The surrogate gave birth to twins and the applicants were eventually able to obtain British passports for them, as Y was a British citizen.
When the applicants applied for parental orders to obtain legal parentage for their twins the following criteria in particular caused some complications in the circumstances of the case:
- Y's domicile;
- the surrogate’s consent;
- whether the consent of the surrogate's husband was required;
- whether the payments to the surrogate should be retrospectively approved; and
- whether there were public policy reasons why the order should not be made.
The court found as follows:
- that Y remained domiciled in the UK, as he intended to move back to the UK with Z and their children in July 2023.
- the surrogate was found to have consented as she had given her written signed notarised consent despite concerns being raised that was because she was paid $5,000 on the same date (the implication being that she had effectively been paid for her consent and so that it was not given unconditionally).
- the surrogate’s husband’s consent was dispensed with (under s.54(7)) as he could not be contacted. The surrogate claimed that he had not consented to the surrogacy but refused to provide information about him. Despite the applicants’ significant efforts to contact the surrogate’s husband, they were unable to do so.
- the court also agreed to retrospectively approve the payments made.
- despite the court's concern that the applicants entered into a surrogacy arrangement in a jurisdiction which did not permit same-sex couples to engage in a surrogacy arrangement, the court did not deem that a public policy bar to making the orders. The judge was critical of the conduct of the intended parents and warned that in similar future cases the outcome might not be the same.
This case highlights the need for specialist family law and immigration advice to be taken before entering into any surrogacy arrangement. Without a parental order (or an adoption order, if possible), one or both of the intended parents will not be a legal parent in the UK which means the parent(s) not having legal authority to make basic decisions about their child’s medical care and education, potential complications with inheritance rights and with obtaining or renewing a UK passport, and issues if the intending parents separate.
A parental order offers the child lifelong security and stability that their welfare requires.
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