Foreign Surrogacy Arrangements - High Court Underlines the Hazards

Delays in surrogacy treatment in England may be long but, as a High Court ruling showed, those who look abroad to fulfil their desire for parenthood may well be placing their own and their children's legal status at risk.

The case concerned a same-sex couple who lived in Thailand, one of whom was British. Desperate to have a family and faced with long waiting lists in the UK, they resorted to a foreign surrogacy agency which they found online. Eggs donated by a Cambodian woman were fertilised using the British parent's gametes. A surrogate mother was found in Georgia and she gave birth to twins.

However, the couple's happiness was marred by, amongst other things, delays in uniting them with the children arising from the COVID-19 pandemic. The children were also born prematurely and required neonatal intensive care. Overall, the couple paid more than $76,000 to the agency and the surrogate mother.

Perhaps the greatest difficulty they faced, however, was a continuing question mark over whether they would be recognised as the children's legal parents under English law. That depended on whether the requirements concerning surrogacy arrangements contained in the Human Fertilisation and Embryology Act 2008 had been met. The couple applied to the Court for formal parental orders in their favour.

Ruling on the matter, the Court noted that the couple were married and that there was a biological connection between the British parent and the children. Despite his residence abroad, the Court was satisfied that he remained domiciled in this country. The surrogate mother's written consent to the arrangement was not compromised by money she had received. The requirement to also obtain her husband's consent was dispensed with because he could not be contacted.

Turning to the financial aspects of the arrangement, the Court found that the money paid by the couple clearly went well beyond expenses reasonably incurred in the surrogacy. The Court had a number of concerns about their conduct but ultimately concluded that the payments should be retrospectively authorised. Overall, the welfare of the children, who were much loved and well cared for by the couple, demanded that parental orders be made.

In its decision, the Court emphasised that parents who engage in surrogacy arrangements, particularly abroad, should have a clear understanding about what is required to secure their legal position in relation to any child born. To do otherwise was to place the future of longed-for children at risk and could be viewed as an abdication of responsibility.