International surrogacy arrangements need parental orders, says UK judge

A UK High Court judge has said applications for parental orders in international surrogacy cases should be encouraged and made promptly.

'The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly', Mrs Justice Theis said in her judgment.

Mrs Justice Theis granted an application for a parental order in March this year that was brought by a British couple who had entered into a surrogacy arrangement with a Californian surrogate, in which they paid the surrogate a total of $56,750 for her inconvenience. The judge considered that the sums were not sufficiently disproportionate to expenses reasonably incurred and that the couple had acted in good faith. It was in the interest of the children involved for the order to be granted.

Although payments for surrogacy are not illegal in the UK, payments or benefits or than for expenses reasonably incurred must be authorised by the court before a parental order can be given. Although the High Court has authorised payments before (see BioNews 637 and 676), in this case the payment was somewhat higher, although made in accordance with Californian law.

In giving judgment, Mrs Justice Theis has publicly warned parents of children born through international surrogacy that they must apply to court in the UK. She said: 'The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made'.

The judge asked for a copy of the judgment to be sent to the Department of Health, which has regulatory responsibility in this area.

Commenting on the case, Natalie Gamble, solicitor for the parents, said: 'Surrogacy law in the UK desperately needs to be updated to deal with the realities of the global fertility market. Our current law was written more than 20 years ago before any of these scenarios were dreamt of, and there is no logical fit between the law here and the law abroad'.