X & Y (Foreign Surrogacy)
- Date: 16/01/2009
[2008] EWHC 3030 (Fam)
Related Barrister: Lucy Theis QC
Decision of Hedley J arising from an application for a Parental Order under the Human Fertilisation and Embryology Act 1990 (‘HFEA 1990') involving a foreign surrogate mother.
An British couple had made a commercial surrogacy arrangement with a Ukrainian woman in the Ukraine who gave birth to twins using anonymously donated eggs fertilised by the male applicant's sperm. Hedley J made this judgment in open court so as to highlight the problems that the respective surrogacy and immigration laws of England and Ukraine created which resulted in a position where the children were "marooned stateless and parentless whilst the applicants could neither remain in the Ukraine nor bring the children home".
In granting the application Hedley J reviews the relevant provisions of the HFEA 1990, particularly the issue of the consents required by the surrogate parents. He concludes that consent had been lawfully given by the surrogate mother and her husband. He also considers whether the payments made to the surrogate mother could be authorized by the court within the restrictions of the 1990 Act. He reviews the considerations the court should take into account when considering whether to authorise commercial payments under s30(7) of the 1990 Act. He did authorise the payments and made a parental order as being in the best interests of the children before making comments on the legal difficulties attached to overseas surrogacy arrangements.