(Family Division, Theis J, 26 March 2013)
The two men, civil partners, entered into an agreement with the British Surrogacy Centre of California for which they paid £3,500 for their services in facilitating a surrogacy arrangement.
An American surrogate became pregnant using sperm from one of the men and a donor egg. The men paid her in total $56,750 including $53,000 as a pregnancy compensation fee plus an inconvenience fee for the embryo transfer and an allowance for incidental expenses.
When the surrogate was 25 weeks' pregnant with twins the men ceased working with the centre and instructed lawyers in the USA instead. The men were awarded paternity orders by the California court prior to the birth enabling them to be named on the US birth certificates. Following the birth the children remained in the full-time care of the men, US passports were obtained and they were permitted a 6-month visitor's visa while applications for British citizenship were made. The men now sought a parental order pursuant to s 54 of the Human Fertilisation and Embryology Act 2008.
On the facts of the case the payments involved were not so disproportionate to the expenses reasonably incurred that the granting of the order would be an affront to public policy or that they were of such a level to overbear the will of the surrogate. The men had acted in good faith throughout and had even developed a close relationship with the surrogate and her family. They had taken all proper steps to comply with the legal parentage requirements in the UK and the USA. In the circumstances the court would exercise its discretion pursuant to s 54(8) of the HFEA 2008 and authorise the payments made other than for reasonably incurred expenses.
The paramount consideration of the court was the welfare of the children. The parental order reporter produced a positive report of the relationship between the children and the men. She recommended that the welfare needs of each of the children would be best be served by making the parental orders.
The respondents, being the surrogate and her husband, had provided their consent to the orders, were unwilling to care for the children and as a matter of Californian law, were not their legal parents.
The judge concluded that only the parental orders would provide the lifelong security and stability that the children's welfare required.