Landmark international surrogacy case – legal parenthood should not be denied because a surrogate was paid

NGA Law has won a legal parenthood order for British parents who conceived a baby through a commercial surrogacy arrangement entered into lawfully in Illinois, USA. The judge (Mr Justice Hedley), sitting in the High Court Family Division, has ruled that the child’s welfare is the court’s ‘paramount consideration’ and this takes precedence over longstanding UK public policy against commercial surrogacy.  A parental order, he has said, should now only be refused to parents who have paid a surrogate abroad if the case represents the ‘clearest abuse of public policy’.

In practical terms, this significant decision opens the door to the family court approving commercial payments for surrogacy routinely and in all but exceptional cases. Although international surrogacy cases are currently rare, difficulties accessing surrogacy in the UK (in part due to restrictive UK legal framework) are encouraging intended parents to instead look overseas (where commercial surrogacy is lawful) so cases like this are likely to become more commonplace going forward.

Today’s decision follows an earlier ruling of the same judge in a Ukraine surrogacy case (Natalie also having acted for the parents in this case – Re X and Y (2008)) in which the court upheld the best interests of the children and retrospectively authorised payments made to a surrogate mother in the Ukraine.  The children had been ‘marooned stateless and parentless’ due to the conflict between UK law (which said the surrogate and her husband were the parents) and Ukraine law (which said the British intended parents were the parents) and the judge said their welfare demanded that a parental order be made to make the British parents their legal parents.

However today’s ruling is important because it takes that first case-specific decision to a wider principle which sets a framework for other similar cases more clearly.  The judge has said: “It must follow that it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations supports it making.  It underlines the court’s earlier observation that, if it is desired to control commercial surrogacy arrangements, those controls need to operate before the court process is initiated.”

We are delighted at today’s decision, which recognises that in a modern global world, law created in the 1980s for surrogacy is no longer fit for purpose and that children need to be recognised as having legal status in the right family.  Our brave clients in this case faced an enormous struggle to have a loved and wanted child, accessed surrogacy services available to them perfectly lawfully overseas and their US surrogate is now, in their own words, ‘firmly a part of our family’.  There is no doubt they should be recognised as their daughter’s legal parents.

Media coverage

Daily Telegraph (front page national headline) – Childless couples win right to pay surrogate mothers

Daily Telegraph (parents responding to the headline the day before) – Surrogacy couple: paying American woman was our last chance for a child

Daily Mail – Childless couples win right to pay surrogate mothers

More information about international surrogacy law is available on our website.

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