This case concerned a married same-sex couple who were seeking a parental order for their son who was born via an international surrogacy arrangement in China. The case was heard by Mr Justice MacDonald sitting at the Royal Courts of Justice.
Background
The intended parents in this case arranged the surrogacy through an ‘intermediary’ in China. Mr Justice MacDonald highlighted in his judgment that there was no mention of the name of any surrogacy agency, even on the paperwork provided by the intended parents. The applicants in this case explained that their surrogacy contract was facilitated through an ‘intermediary’ and that there is no agency ‘as such’, and that it is through connections that people ‘become aware of his service’.
The child in question was conceived and born in China via a surrogate, who was also a Chinese national. There is no information on how the surrogate came to be recruited and act as a surrogate.
The intended parents in this case entered into a surrogacy contract with the intermediary. They confirmed within the proceedings that there was no surrogacy agreement that had been signed in advance or settled orally between them and the surrogate. The surrogate also did not have the benefit of obtaining legal advice during the surrogacy process.
The allocated Cafcass Parental Order Reporter in this case spoke with the surrogate via WeChat, during which the surrogate confirmed that everything she agreed to was agreed verbally and that she had no concerns to raise. The surrogate also confirmed to the Cafcass Parental Order Reporter that she did not want any parental rights for the child and that she understood by providing her consent she was surrendering those rights. She also confirmed she had not received any legal advice.
The contract between the intended parents and the intermediary specified an IVF sex selection process which:
- prioritised male embryos
- provided a partial refund if a girl was born instead
- specified a fixed price
- imposed a daily financial penalty for any delay in collecting the child
- made payment a precondition of the child being handed over to the intended parents
Payments of £92,930.60 were made to the intermediary. One of the intended parents initially stated that £32,000 of which was actually received by the surrogate in payment for her services but later stated that she received £25,935. The surrogate told the Cafcass Parental Order Reporter that she received a one-off payment of ¥ 200,000 (c. £22,000). The surrogacy contract itself had no express provision for any payment to be made to the surrogate.
It had also transpired within the proceedings that commercial surrogacy arrangements are illegal in China. The Cafcass Parental Order Reporter highlighted that this meant the surrogate was vulnerable as the child was being born via an illegal arrangement, had no protection and therefore at serious risk of exploitation.
The legal framework
The Human Fertilisation and Embryology Act 2008 is the legal framework that governs the making of a parental order. Section 54 specifically outlines the conditions that must be met where a parental order is sought by a couple.
This includes (but is not limited to):
- The gametes of at least one applicant must have been used to create the embryo
- The parties must be married, civil partners, or living together in an enduring family relationship
- The application must be made within the first 6 months of the child’s birth
- At least one of the applicants must be domiciled in the UK
- The child’s home must be with the applicants at the time of the application and making of parental order
- The court must be satisfied that the surrogate freely and unconditionally agrees to the making of a parental orderr
- That no payment beyond reasonable expenses have been made, unless authorised by the court
Subject to the Section 54 conditions being met, the court is required to then consider the child’s lifelong welfare needs by virtue of the welfare provisions contained in the Adoption and Children Act 2002.
Mr Justice MacDonald was satisfied that the child was biologically related to one of the intended parents, who were both married and domiciled in the UK. The intended parents took custody of the child immediately from birth and made their application for parental order within the statutory 6-month window.
The key issue for Mr Justice MacDonald in this case was whether the surrogate had “freely, with full understanding of what is involved, agreed unconditionally” to the parental order being made. Mr Justice MacDonald was satisfied that the requirements for consent had been made out in this case due to the efforts made by the Cafcass Parental Order Report to explore and ascertain this.
Mr Justice MacDonald also highlighted that where the court is being invited to authorise payments made and implemented abroad, whereby a surrogacy arrangement is illegal, the court must also consider the question of public policy, albeit he did not consider that the high threshold for public policy considerations to override the welfare of a child had been met, and so “reluctantly”, retrospectively authorised the payments made under the surrogacy arrangement, and agreed that a parental order was in the child’s best interests in this case.
Conclusion
Mr Justice MacDonald issued a clear warning to intended parents, stating that his judgment in this matter was “not a licence to engage in unlawful commercial surrogacy arrangements abroad”.
He also reiterated previous judicial guidance that anyone considering engaging in international surrogacy should obtain specialist legal advice beforehand.
If you are considering entering into an international surrogacy arrangement, you should obtain specialist legal advice from a family lawyer before choosing the international jurisdiction of that arrangement. Intended parents should also not rely on legal advice from the surrogacy agency alone and ensure they seek independent advice outside of this. Rayden Solicitors are experts in international surrogacy agreements, please do not hesitate to contact us to discuss your situation in confidence.
