High Court sets out framework for international surrogacy

A judgment from the High Court of England and Wales has clarified how judges should approach granting parental orders in international surrogacy cases.

A&B v C&D concerned nine parental orders. Mr Justice Williams deferred decisions on all nine while the court reconsidered its approach, particularly regarding payments to surrogates. Section 54 of the Human Fertilisation and Embryology Act 2008 outlines a set of criteria for the making of parental orders, including that: 'The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received' by the applicants.

'I am conscious that the approach I have taken to the issue of the authorisation of money or other benefits, and the role public policy plays in the decision on whether to authorise, differs in a material respect to that taken by other Judges of the Family Division over the years,' said Justice Williams.

He noted that since 2010, when a policy stating that the child's welfare should be paramount was introduced, there has not been a single recorded case in which a UK court refused to authorise payments and grant a parental order.

Justice Williams said: 'The suggestion that egregious examples of breaches of public policy might still outweigh welfare considerations, and could tilt the balance against the making of a parental order, are in my view wrong as a matter of law.'

While the ruling simplifies the legal test, policy concerns are not entirely discarded but are now viewed through the lens of welfare. For example, the court will still scrutinise large payments, but primarily to determine if they overbore the surrogate's will or suggest that the intended parents are unsuitable or pose a risk of harm to the child.

'This judgment is an important recalibration,' Jeremy Ford, a partner at Cambridge Family Law Practice said. 'It requires scrutiny to be directed to the child's welfare, the integrity of the process, and the suitability of the intended parents.'

Under UK law, the person who gives birth is always the legal mother of a child, and a parental order is required to transfer legal parenthood to the intended parents in surrogacy cases. It is necessary even when surrogacy is undertaken in jurisdictions where the intended parents are named on the birth certificate.

The judgment goes on to outline a rigorous framework for families pursuing international surrogacy, including a list of 21 due diligence questions that parents should address in their evidence.

These include legal frameworks in the country of birth and the surrogate's understanding of the agreement. The court recommends that intended parents categorise all payments and demonstrate good faith and ethical conduct throughout the arrangement.

Justice Williams also highlighted problems with current legislation. He suggested that if Parliament intends for public policy to carry real weight in these cases, it must explicitly amend the law to allow judges to prioritise policy over individual child welfare.