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UK High Court awards parenthood to male couple after Indian surrogate disappears

8 October 2012
Appeared in BioNews 676

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 - who could not be found. It is believed to be the first parental order granted by the High Court without the signed consent of the surrogate mother, who although did not express any objection went missing before providing formal consent for both men to be considered the legal parents of the children.

The couple reportedly paid the equivalent of £17,000 to a fertility clinic in Hyderabad, India in 2010 to cover all of the treatment and costs of the surrogacy arrangement; a sum which the court considered to be above the legal threshold in the UK. As part of the arrangement with the clinic, the couple, who used an anonymous egg donor and sperm from one of the men, was not permitted to meet the surrogate.

The men took custody of the children two days following their birth, obtaining passports and returning with them to the UK. However, signed consent from the surrogate - as required under UK law for a parental order to be made - was not sent by the clinic. The couple's letter to the clinic requesting the document was followed by a single piece of paper, purportedly from the director, with an 'obscene gesture' on it, the court reported. They have been raising the children without being legally recognised as the parents.

Under UK law, the intended parents of a surrogacy arrangement must apply for a parental order to be considered the legal parents of any children born through it. Before an order is granted, the consent of the surrogate must be obtained no less than six weeks after the birth of the child. However, an exception to this requirement can be made if the surrogate 'cannot be found'.

The court was asked that in considering the couple's application to take into account the surrogate's previous expressions of consent, although not valid for the purposes of the order itself, and to retrospectively authorise the payments made under the surrogacy agreement.

Justice Baker said the welfare of the children was the paramount consideration for the court and it was in their interests to grant the parental order, dispensing with the consent requirement from the surrogate mother and authorising the payment. He said that the couple had taken all reasonable steps to obtain the surrogate's consent.

'I accept that it is not the applicants' fault that they found themselves in this position. I am satisfied that they reasonably believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down', he wrote.

However, he said the case served as a warning of the risks involved with seeking foreign surrogacy. 'In future cases, applicants and their advisors should learn the lessons of this case, and take steps to ensure that clear lines of communication with the surrogate are established before the birth to facilitate the giving of consent', he said.

The case is D and L (Surrogacy) [2012] EWHC 2631 (Fam).

7 November 2016 - by Antony Starza-Allen 
A surrogate has refused to give her consent for the parents of twins to become the children's legal parents, even though she and her husband are not seeking any active involvement in the children's upbringing...
6 October 2014 - by Antony Starza-Allen 
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10 June 2013 - by Richard Perrins 
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3 June 2013 - by Antony Starza-Allen 
A UK High Court judge has said applications for parental orders in international surrogacy cases should be encouraged and made promptly...
22 October 2012 - by Natalie Gamble 
Consent requirements for surrogacy were created in 1990 and sought to discourage surrogacy, to make it a perilous undertaking that few would brave. With more experience behind us, we now know that surrogacy is not something to be quite so afraid of...
6 June 2012 - by Natalie Gamble 
Indian surrogacy is a hot media topic, with several stories over the past week about couples being stuck in India waiting for British passports for their biological children. As far as we are concerned, this isn't really news – it is the shared experience of every British parent who has had a child through surrogacy in India, and something we deal with on a daily basis....
12 December 2011 - by Antony Starza-Allen 
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'...
8 August 2011 - by Antony Starza-Allen 
The UK's High Court has awarded legal parenthood to a deceased father of a child born through a surrogacy arrangement in India....
7 February 2011 - by Ben Jones 
An Australian gay couple who entered into a paid surrogacy arrangement has won a legal battle to acquire full paternity rights for the non-genetic father....
10 January 2000 - by BioNews 
The three-week-old surrogate-born twins of a British homosexual couple have been refused official entry into the UK. The twins and their fathers were detained by immigration officers at Heathrow airport as the family tried to return to their UK home, and the passports of the children have been confiscated. The...
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