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)  EWHC 2631 (Fam).