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UK High Court grants parental orders in Indian surrogacy case

12 December 2011
Appeared in BioNews 637

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'.

The children, a boy known as X and a girl known as Y, were born in New Delhi, India, to two different surrogate mothers. Both children were looked after from birth by the intending parents, known as Mr and Mrs A. Mr A is the biological father of both children and the eggs were donated anonymously.

The couple enlisted the services of a company operating from a clinic in a New Delhi hospital to find a surrogate mother, after a British agency said it would not consider couples for another three years due to a shortage of surrogates in the UK.

The surrogacy agreement provided for a payment of 200,000 rupees in 'compensation' to each surrogate, although evidence suggested what was paid in the end was higher at 230,000 rupees (around £3,000). The court heard how one of the surrogates worked as a maid earning 9,000 rupees a month and the other as a housekeeper earning around 11,000 rupees a month.

Mr and Mrs A paid over 2,000,000 rupees to the clinic (around £27,400), which took responsibility for making payments to the surrogates and expenses, both medical and non-medical. The clinic stated the payments to the surrogates represented compensation for loss of earnings over 13 months, although the judge held it 'remains unclear precisely what sums the surrogate mothers actually received and what the monies paid to them actually covered'.

In his reasoning, Sir Nicholas Wall said the critical issue was whether the payments made by Mr and Mrs A fall outside UK law which requires that the court must be satisfied that no money or other benefit – other than for expenses reasonably incurred – was given.

Although the judge said it was likely the payments went beyond 'reasonable expenses', he concluded they were 'not so disproportionate that the granting of parental orders would be an affront to public policy'. He said Mr and Mrs A were acting in 'good faith' and had made no attempt to 'defraud the authorities'.

In deciding whether to retrospectively authorise the payments, Sir Nicholas said it was suggested to the court that the law requires the child's welfare to be the court's 'paramount consideration'. This followed another case in 2010 in which Mr Justice Hedley said that welfare is no longer the court's first consideration but its paramount consideration - although he said the court should still, on the grounds of public policy, scrutinise applications to retrospectively authorise payment.

However, as Mr Justice Hedley pointed out in an earlier case, 'the difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order'. Sir Nicholas said he was 'particularly struck' by the passage, which despite a change in the law, he said remained relevant.

The case raises some complex issues. In September, a High Court in Pretoria, South Africa, in outlining guidance for international surrogacy arrangements, expressed concerns that the 'involvement of agencies in the introduction of surrogate mothers can also easily lead to abuse'.

It said with regard to international surrogacy practices, 'it becomes clear particularly in countries such as ours with deep socio-economic disparities and the prevalence of poverty, that the possibility of abuse of underprivileged women is a real and ever present danger'. The judge concluded: 'Ideally the involvement of agencies should be the subject of regulation'.

In another parental order handed down by the UK's High Court in July involving an arrangement with an Indian mother, Mrs Justice Theis sought to emphasise the legal difficulties overseas surrogacy arrangements can create. 'Although the circumstances that have arisen in this case are extremely rare, they bring into sharp focus again, the difficulties that can arise in international surrogacy arrangements', she said.

In the present case, Sir Nicholas noted: 'Mr and Mrs A did not consult solicitors in the UK about the legal implications of an international surrogacy arrangement before flying to India though they were aware of some of the legal difficulties they might encounter'.

X And Y (Children) EWHC 3147 (Fam)
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