High Court decision in three new international surrogacy cases

August 20, 2013

The High Court’s main surrogacy judge, Mrs Justice Theis, has made her decisions in three new international surrogacy cases public, something she only does if she is considering a new issue (to give guidance) or if she wants to draw attention to something which is in the public interest.

The three new decisions all concern foreign commercial surrogacy cases and continue the long trend of the UK court authorising foreign surrogacy arrangements retrospectively. There is no cause for intended parents to be alarmed.

The first two cases – Re PM (2013) and Re C (2013), both US surrogacy cases – deal with the question of payments. The High Court already has a consistent history of ‘authorising’ payments for foreign surrogacy in order to make the child legally a member of his or her UK family, since the very first case (involving a Ukrainian commercial surrogacy arrangement) in which this was done in 2008. However, until now the focus has been on the payments going to the surrogate mother. Theis J has now made it clear that the court also needs to consider what payments have been made to the third party intermediaries who brokered the arrangement (in these two cases, US surrogacy agencies). If these payments include an element of profit for the agency, they will also need the court’s authorisation before a parental order can be made. In practice, this will not affect the likelihood of UK parents being successful in their application (since the welfare of their child will always take priority) but it means that the court will need even more detailed information about the breakdown of payments made for foreign surrogacy before it can reach a final decision.

The third case (AB v DE (2013), also confusingly reported as Re C (2013), in which we represented the parents) is the first Russian surrogacy case to be considered by the UK court. Mrs Justice Theis has published her decision to set out the law and how things are working on the ground in Russia. She also considered some tricky factual issues specific to the particular case. Any parents considering surrogacy in Russia may find the case useful, and lawyers representing them in the UK or in Russia may want to pay heed.

There is more information about international surrogacy on our website.

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