Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
That case was complicated even further than is usual with
the HFEA because the applicants had moved from Australia to England after the
birth of the child, and had been pursuing an adoption application for the child
(believing that they were barred by the statute from applying for a parental
order for being out of time – which was the case prior to the President’s
decision in Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam) of which much more later).
Mrs Justice Theis stressed the benefits for commissioning couples
to get legal advice and make proper plans:
[5(1)] This case
highlights, once again, the need for those undertaking surrogacy arrangements
abroad to take specialist advice. In many of these cases large sums of money
are paid for the expenses in undertaking these arrangements. Figures in excess
of £15 - 20,000 are not uncommon. Commissioning parents should, at the very
least, get an outline of the relevant legal steps they need to take to ensure
their position and, more importantly that of any child born as a result of the
arrangement, is protected. The cost of that advice is likely to be a minimal
expense in the context of the large sums spent on the surrogacy arrangement
parents should be encouraged to:
(a) Promptly make applications
for parental orders after the birth of the child, even if they are not present
in the jurisdiction, providing at least one of them is domiciled in this
jurisdiction (s 54 (4)(b). It is only a parental order that provides lifelong
security for the child, as it recognises the commissioning parents as the legal
parents of the child with all the positive benefits that flow from that.
Without that order their legal relationship with the child is best described as
precarious; in most cases without such an order being in place, the surrogate
mother (and her husband, if she is married) remain the legal parents of the
(b) Take steps to
ensure there are clear lines of communication with the surrogate mother, and
her husband if she is married, to facilitate the giving of consent after the
expiry of six weeks from the birth (as required by section 54 (6) and (7)).
This should ideally include meeting the surrogate mother.
(c) Ensure there are
coherent records regarding any sums paid under any agreement, in particular
those that are paid to the surrogate mother.'
[Providing such legal advice is not without risk, as a
result of Mrs Justice King’s decision in Re JP v LP  EWHC 595 (Fam) that the statutory offence in s 2 of the Surrogacy Arrangements Act 1985
is capable of biting on a lawyer who charges for drawing up agreements:
surrogacy arrangements on a commercial basis, etc. (1) No person shall on
a commercial basis do any of the following acts in the United Kingdom, that is— (a) initiate or take
part in any negotiations with a view to the making of a surrogacy arrangement, (b) offer or agree to
negotiate the making of a surrogacy arrangement, or (c) compile any
information with a view to its use in making, or negotiating the making of,
surrogacy arrangements; and no person shall in
the United Kingdom knowingly cause another to do any of those acts on a
commercial basis. (2) A person who
contravenes subsection (1) above is guilty of an offence; ]
There were two parts of the Parliamentary provisions which
seem now to be more honoured in the breach than the observance. The first the
time limit in s 54(3) that the application MUST be made within 6 months
of the child’s birth, and the second the provision in s 54(8) for the court to scrutinise payments that have been made.
Why did those Parliamentary provisions come about? Well, much
of this relates to the public revulsion of the case of Mr and Mrs Kilshaw who
were pioneers in the early days of the internet and were the first people in
England to be publicly linked with buying a baby from overseas, paying £8,000 to
adopt twins from America.
The President in Re X disposed of s 54(3), in some judicial
sleight of hand, allowing a parental order to be made although the application
was made 2 years after the birth rather than the six months of the statute.
' Where in the
light of all this does the six-month period specified in section 54(3) stand?
Can Parliament really have intended that the gate should be barred forever if
the application for a parental order is lodged even one day late? I cannot
think so. Parliament has not explained its thinking, but given the
transcendental importance of a parental order, with its consequences stretching
many, many decades into the future, can it sensibly be thought that Parliament
intended the difference between six months and six months and one day to be
determinative and one day's delay to be fatal? I assume that Parliament
intended a sensible result. …
 I have considered
whether the result at which I have arrived is somehow precluded by the
linguistic structure of section 54, which provides that "the court may
make an order … if … the [relevant] conditions are satisfied." I do not
think so. Slavish submission to such a narrow and pedantic reading would simply
not give effect to any result that Parliament can sensibly be taken to have
 I conclude,
therefore, that section 54(3) does not have the effect of preventing the court
making an order merely because the application is made after the expiration of
the six month period. That is a conclusion which I come to, without reference
to the Convention and on a straightforward application of the principle in
Howard v Bodington (1877) 2 PD 203.'
For no good reason at all, the case where the President
described a local authority’s actions as being 'a tottering edifice built on
inadequate foundations' popped into my mind, because the President’s
foundations here are constructing an edifice. As an authority, it is relied
upon in Re AB and CD as authority to allow the parental order to be made on an
application that is two and a half years out of time. No doubt others will
On the second aspect, that of cash payments to the surrogate
mother, the President very neatly captures in Re X the spirit of this statutory
'75 ... (1) the
question whether a sum paid is disproportionate to "reasonable
expenses" is a question of fact in each case. What the court will be
considering is whether the sum is so low that it may unfairly exploit the
surrogate mother, or so high that it may place undue pressure on her with the
risk, in either scenario, that it may overbear her free will.
(2) the principles
underpinning section 54(8), which must be respected by the court, is that it is
contrary to public policy to sanction excessive payments that effectively
amount to buying children from overseas.'
The Court, in looking at the sums paid by the applicant to
the surrogate mother have to consider whether this sum is so low that it is
exploitative, or so high that it amounts to ‘buying a baby’.
There’s a Goldilocks effect here – there’s a space between
too low and too high where the sum is just right. That can’t be too narrow a space, there must
be a decent margin.
It is surprising, looking at this, that each and every
applicant for a parental order has managed, without clear guidance or explicit
recommendations of what that sum should be to pitch their fee in just the right
area. Every one of them has walked into a room with three bowls of porridge and
picked the one that was just right.
Even though the figures range from in English money from
£2,500 to £29,000 in the last four years of reported cases, each of those have
been in the Goldilocks sweet spot of not too high, not too low.
I have argued before that the bald figure doesn’t really
tell you everything - £5,000 can be worth a great deal more to a person in
Bangladesh than in America, for example.
So, the biggest market for overseas surrogacy at the moment
is India. The average monthly income in India is £191. So when English people are paying an Indian
mother £3,500 (which seems the current going rate – the agency setting up the
deal gets about three times as much as the surrogate mother – in Re AB the
agency received nearly £14,000 and the mother £2,250… how can that not be considered exploitative?),
they are giving that Indian mother the equivalent of 18 months wages. To convert that back into what it would mean
for an English mother in the same position, one would be talking about £36,000.
[The going rate in
America seems to equate to just under twelve months average income, so although
the bare cash sum is less to a surrogate from India the relative amount is
Perhaps it is just me, but I think if you approached an
English woman, perhaps on benefits or low income, and offered her £36,000 to
have a baby for you, I would think that this would come into the ‘too high’
category and is getting into the ‘buying a baby’ territory. The temptation to
see the offer as a way of resolving other problems might place undue pressure
on her to accept the offer.
The problem for the courts is that the only remedy is to not
make the parental order. They can’t order that the applicants pay more money,
or that the money they had paid should be recovered, or that there should be a
fine. They can either make the parental order, or not. And thus, even if there is some disquiet,
they make the order.
The President summed it up very well in Re X.
'75 ... (3) however, as a
result of the changes brought about by the Human Fertilisation and Embryology
(Parental Orders) Regulations 2010, the decision whether to authorise payments
retrospectively is a decision relating to a parental order and in making that
decision, the court must regard the child's welfare as the paramount
(4) as a consequence
it is difficult to imagine a set of circumstances in which, by the time an
application for a parental order comes to court, the welfare of any child,
particularly a foreign child, would not be gravely compromised by a refusal to
make the order: As a result: "it will only be in the clearest case of the
abuse of public policy that the court will be able to withhold an order if
otherwise welfare considerations support its making", per Hedley J in [In
re L (A Child) (Parental Order: Foreign Surrogacy)  EWHC 3146 (Fam),
 Fam 106,  1 FLR 1143] at paragraph 10.
(5) where the
applicants for a parental order are acting in good faith and without "moral
taint" in their dealings with the surrogate mother, with no attempt to defraud
the authorities, and the payments are not so disproportionate that the granting
of parental orders would be an affront to public policy, it will ordinarily be
appropriate for the court to exercise its discretion to give retrospective
authorisation, having regard to the paramountcy of the child's lifelong
Are the protections in s 54(3) and 54(8) being used in
a meaningful way? It is hard to see what section 54(3) actually does in
practice post Re X - if you were
rewriting the following:
'the applicants must
apply for the order during the period of 6 months beginning with the day on
which the child is born'.
With the meaning post Re X, the only sensible redraft would
be to put a line through the entire clause.
Is the current porridge of parental order case law just right?