A same-sex couple living in Thailand, one of whom was a British citizen ('Y'), entered into a surrogacy arrangement in Georgia, where same-sex surrogacy is prohibited. The surrogacy arrangement resulted in twins being born prematurely in summer 2020 and requiring a period of care in a neonatal intensive unit.
It subsequently came to light that the agency facilitating the surrogacy arrangement had not registered the surrogate with the relevant authorities in Georgia and that she was married. Her husband was unaware of the surrogacy proceedings and she was concerned about proceedings for a parental order impacting her and her family if she provided details of her husband. She did not sign or return the acknowledgement of service, although in email exchanges, she had requested further payment to sign it and so appeared to have notice of the proceedings.
There were a number of considerations for the court under s.54 of the Human Fertilisation and Embryology Act 2008 ('HFEA'):
S.54(2) HFEA refers to 'husband and wife', as HFEA was not amended by the Marriage (Same Sex Couple) Act 2013. The court agreed to read down s.54(2) HFEA to ensure that it was compatible with the applicants' EHCR Article 8 and 14 rights.
The application had not been issued within six months of the children's birth. The court noted the premature birth of the twins, the travel restrictions imposed as a result of the pandemic and the demands of caring for the children had all contributed to the delay. It was in the twins' welfare for a parental order to be made.
Although Y had spent time abroad, he had retained his domicile of origin, namely the UK, as was required by s.54(4)(b) of HFEA.
In terms of whether the consent of the surrogate's husband was required, although the surrogate had refused to provide information about her husband, the applicants had sought to contact him through other means including through social media. The court was satisfied the husband 'could not be found' and his consent was dispensed with.
Although the surrogate had given written signed consent, she was paid $5,000 by the parents on the same date. The court accepted the parents' explanation that the funds had been provided after she had signed the birth certificate and that her consent was freely given.
Regarding payments made to the surrogate, the court was willing to authorise the payments as they were made in accordance with Y's agreement with the agency or were listed in the agreement as excluded from the package price.
The court expressed some concern that the intended parents had knowingly entered into a surrogacy arrangement in a jurisdiction where same-sex surrogacy is illegal. The applicants relied on 'good faith' that other same-sex couples had undergone surrogacy arrangements there, and asserted that their decision was clouded by their desire to become parents. The court stressed that 'situations such as in this case can result in the court refusing to make a parental order'. However, ultimately, it did not see public policy reasons as being a bar to making an order.
The court granted the parental order, but emphasised that, that before embarking on a surrogacy arrangement (particularly one that involves arrangements in other jurisdictions) intended parents should have a clear understanding about what is required to secure their legal position in relation to any child born as a result of such an arrangement. To do otherwise leaves the future of the much longed for child at risk, in particular of not being able to secure the lifelong legal parental relationship between the intended parents and the child in the jurisdiction where they wish to live.
Antonia Felix says: Intended parents should ensure they work with reliable clinics in the jurisdiction in which they are seeking to enter a surrogacy arrangement and understand, as part of the surrogacy agreement, how the surrogate is paid and the process by which the surrogate (and her husband or wife if she is married) give their consent. Before they embark on a surrogacy journey, particularly abroad, they should undertake their own due diligence well in advance to ensure they are eligible to be recognised as parents in this jurisdiction.