Transferring legal status from surrogate mother a “difficult balance”
A British couple who paid for a surrogate birth in the US have been recognised as the child’s parents.
Surrogacy is legal in the UK as long as no more than reasonable expenses are paid to the surrogate mother.
In Re: L (a minor) [2010] EWHC 3146 (Fam), Mr Justice Hedley made a Parental Order and retrospectively authorised the payment of the mother, which exceeded “reasonable expenses”. The baby, which entered the UK on a US passport, would potentially have been stateless and parentless had the court made a different decision.
The ruling gives hope to intended parents that the courts will generously interpret surrogacy arrangements where the mother makes a profit.
Hedley J said in his judgment: “There is no doubt that the agreement was wholly lawful under the law of Illinois just as there is no doubt that it would continue to be unlawful under the 2008 [Human Fertilisation and Embryology] Act in this country. The reason is simple: no payments other than reasonable expenses are lawful here where no such restriction applies in Illinois. It is clear to me that payments in excess of reasonable expenses were made in this case.”
However, Sarah Anticoni, family partner at Charles Russell LLP, says the decision does not herald as radical a shift in the law of surrogacy in England as has been reported. “Those who long for a child may be given hope that, in certain circumstances, courts will generously interpret the payment of ‘reasonable expenses’ to a surrogate parent,” she says. “This has always been as Parliament intended. When deciding on whether or not a parental order should be made under the Human Fertilisation and Embryology Act (transferring the legal status of parent from the surrogate mother) the court has to carry out the difficult balancing act between the individual child’s welfare and the public policy fear that surrogacy never becomes the trading of children for commercial gain.”
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