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International surrogacy arrangements need parental orders, says UK judge

03 June 2013

By Antony Blackburn-Starza

Appeared in BioNews 707

A UK High Court judge has said applications for parental orders in international surrogacy cases should be encouraged and made promptly.

'The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly', Mrs Justice Theis said in her judgment.

Mrs Justice Theis granted an application for a parental order in March this year that was brought by a British couple who had entered into a surrogacy arrangement with a Californian surrogate, in which they paid the surrogate a total of $56,750 for her inconvenience. The judge considered that the sums were not sufficiently disproportionate to expenses reasonably incurred and that the couple had acted in good faith. It was in the interest of the children involved for the order to be granted.

Although payments for surrogacy are not illegal in the UK, payments or benefits or than for expenses reasonably incurred must be authorised by the court before a parental order can be given. Although the High Court has authorised payments before (see BioNews 637 and 676), in this case the payment was somewhat higher, although made in accordance with Californian law.

In giving judgment, Mrs Justice Theis has publicly warned parents of children born through international surrogacy that they must apply to court in the UK. She said: 'The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made'.

The judge asked for a copy of the judgment to be sent to the Department of Health, which has regulatory responsibility in this area.

Commenting on the case, Natalie Gamble, solicitor for the parents, said: 'Surrogacy law in the UK desperately needs to be updated to deal with the realities of the global fertility market. Our current law was written more than 20 years ago before any of these scenarios were dreamt of, and there is no logical fit between the law here and the law abroad'.

RELATED ARTICLES FROM THE BIONEWS ARCHIVE

02 October 2017 - by Andrew Powell 
A recent case is noteworthy not only for clinical negligence lawyers but also those interested in surrogacy and the wider public policy debate in the UK...
08 June 2015 - by Michael Wells-Greco 
On 21 May 2015 the Swiss Federal Court refused to register a male couple - who are in a civil partnership and living in Saint-Gallen, Switzerland - as the legal fathers of a child born following an inter-country surrogacy arrangement...
09 March 2015 - by Antony Blackburn-Starza 
A single father has adopted his biological child born to his mother in a surrogacy arrangement using donor eggs...
05 August 2013 - by Susan Imrie and Vasanti Jadva 
The Human Fertilisation and Embryology Authority intends to update its guidance on surrogacy for clinics, and while we welcome this clarification, it is also important to consider how surrogates feel the law shapes their experiences...

07 May 2013 - by Natalie Gamble 
The Human Fertilisation and Embryology Authority (HFEA) voted on 20 March 2013 to update the guidance it gives to UK fertility clinics on surrogacy. It is a welcome decision that will mean better support for the growing numbers of families created through surrogacy in the UK....
28 January 2013 - by Nina Chohan 
An Irish couple has brought a legal challenge against the State for refusing to remove the surrogate mother from their children's birth certificates and to register the genetic mother as a legal parent...
08 October 2012 - by Ruth Retassie 
A male couple in the UK has been awarded legal parenthood over twins born through an Indian surrogacy arrangement without the consent of the mother....
12 December 2011 - by Antony Blackburn-Starza 
The UK's High Court has granted parental orders to a couple over two children born through an international surrogacy arrangement, ruling that payments made to the Indian surrogates were not 'disproportionate'...

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