High Court rules in favour of parents through surrogacy, despite irregularities in the US

November 28, 2013
In a High Court decision published last week Mrs Justice Theis warned intended parents of the importance of ensuring appropriate legal advice  is obtained in the particular foreign destination, as well as at home.  This reflects the reality that there is no international harmonisation of surrogacy, and as such each destination applies its own rules (including each state in the US).

The case of Re W involved a UK couple who travelled to the US for surrogacy.  Although they retained a California surrogacy agency, their surrogate was based in Nevada where, at the time, compensated surrogacy was ‘unlawful’.   Not aware of this the intended parents paid their surrogate $38,500 as pregnancy compensation (which is entirely usual for a California arrangement) for carrying their triplets.

At the subsequent pre-birth order court proceedings in Nevada the intended parents’ US attorney submitted documents which presented the arrangement as a non-compensated agreement between the parties.  The pre-birth order was granted on this basis and it was not until the parents applied for their UK parental order, following their return home, that it came to light what had happened in the US.

Mrs Justice Theis of the English High Court requested that further evidence be filed as to the history of events and an independent US attorney’s report was ordered to confirm the legal position in Nevada.

Parental orders were subsequently made after careful consideration of the facts and, ultimately, based on the children’s overwhelming welfare demands.  The judge concluded “This case is another timely reminder of the importance for intended parents embarking on surrogacy arrangements abroad to ensure they have appropriate legal advice in the jurisdiction where the surrogacy arrangement is being entered into.”

In our experience parental orders are ultimately very unlikely to be refused, given the need to protect children in these scenarios, but having to explain legal irregularities in the destination country will make the process harder.  Getting good quality legal advice initially in all jurisdictions is therefore critical for parents who want the most straightforward experience.

You can read the full judgment here or find out more about international surrogacy law from our website, and more about how we help create families through surrogacy.

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