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David Hodson on International Family Law: International surrogacy and judicial continuity

Date:6 OCT 2011

David HodsonBy dint of being let down at the last minute by one of my contributors and with the deadline for submitting to my publishers the second edition of the Jordans international book approaching in a matter of days, I found myself on Saturday morning getting to grips with international surrogacy law and practice, admittedly after good preparation from the Rugby. And as I discovered, what a fascinating area it is. It combines the very recent elements of biotechnology in the arena of fertilisation, grapples with the conundrum of surrogacy parenting by both male and female commissioning same-sex couples and yet at heart is concerned about the very best interests of children especially from Third World countries. As with adoption, there are strict penalties and prohibitions on anything which hints of buying children from poor countries.

Yet the law is very realistic. It appreciates expenses have to be paid. It acknowledges expenses may need to be more generous in some countries than others and also cover indirect expenses of the mother rather than the pure out-of-pocket expenses.

One element which struck me was that in this very new area, not requiring any real reference when the first edition of the book was written in 2007, most of the cases had been dealt with by the same judge, Hedley J. At first it looked like a coincidence of listing. But so many have come before him that there must surely have been some policy for judicial continuity. And how excellent it has turned out in the development of the cases in only a couple of years.

In X v Y (Foreign Surrogacy) [2008], he was faced with a newly born child to a gestational surrogate in Ukraine which by virtue of the combination of the laws of both England and Ukraine was stateless, a jurisdictionally international orphan of only a few months. He had to consider appropriateness of payments made and he laid down appropriate tests. Re S (Parental Order ) [2010] was connected with California, another leading jurisdiction in international surrogacy donation with accommodating legislation. This time he drew attention to the failure of the English commissioning parents to obtain a parental order on returning to England with the child as a consequence of which, by law, the child's natural parent remained the mother in California. He warned other parents about the dangers of not obtaining an order to bestow parenthood in law on the commissioning parents. Re K (Minors: Foreign Surrogacy) [2010] concerned India, the third country most involved in this area, where the twin children still remained in India.  Curiously the legislation sets out no jurisdictional rules for the English court and he laid this down.  Finally, Re IJ (Foreign Surrogacy Agreement: Parental Order) [2011] was back to Ukraine with a warning to commissioning parents to have regard to the UK immigration issues.

There have been many calls for judicial continuity in case work, with recommendations in the interim report of Norgrove.  But it seems to me that this is an exceptionally successful exercise in consolidating the development of a difficult and sensitive area of family life to one judge, thereby avoiding the contradictions and confusions often found from the involvement of several High Court judges and allowing the judge the opportunity to develop the law systematically and with appropriate guidance for would-be commissioning parents. Both the judge himself and those who have brought about the state of affairs are much to be congratulated.

More as a postscript, some will know that I am reliant on my voice recognition software, from Dragon, in my work. It is invariably exceptionally accurate. However Dragons clearly don't need fertility assistance. The legislation refers to "sperm and eggs" but the software constantly wanted to say spam and eggs!  Not only would spam be a rather painful fertilisation process but it did rather put one off breakfast!  Secondly, it constantly wanted to substitute surrogacy with celibacy, another issue with fertilisation altogether!

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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