D And L (Minors Surrogacy), Re

Factual and Procedural Background

On 19th July 2012, parental orders were made pursuant to section 54 of the Human Fertilisation and Embryology Act 2008 in respect of twin boys, hereinafter referred to as D and L. The Applicants, a male couple who entered into a civil partnership in Belgium in June 2008, initially lived in Belgium and India before settling in the United Kingdom in August 2011. They decided to start a family via surrogacy, ultimately engaging an Indian clinic in Hyderabad after extensive research and legal advice. The first Applicant provided sperm for fertilisation using an anonymous Indian egg donor, and the embryo was implanted in the surrogate mother, Miss B.

Following the birth of the twins in June 2011 at a hospital in Hyderabad, the Applicants took responsibility for the children and arranged for their passports and exit visas. Despite repeated requests, they did not receive the surrogate mother's formal consent to the parental orders, which under the Act must be given at least six weeks after birth. Attempts to locate Miss B failed, and the Applicants proceeded with their application without her consent.

Applications for parental orders were submitted to the Portsmouth County Court in December 2011. After preliminary directions and a CAFCASS report recommending the order notwithstanding the lack of consent, the matter was transferred to the High Court for further consideration. CAFCASS Legal was appointed to advise on issues including paternity verification, obtaining surrogate consent, and retrospective authorisation of payments made for the surrogacy arrangement.

Legal Issues Presented

1. Whether the court is satisfied that the twins were carried by a woman as a result of the placing in her of an embryo and that the gametes of the first Applicant were used to create the embryo.
2. Whether the court can dispense with the surrogate mother's consent to the parental orders on the grounds that she cannot be found.
3. Whether the court should retrospectively authorise payments made by the Applicants in respect of the surrogacy arrangement.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first confirmed that the twins were carried by the surrogate mother as a result of an embryo created using the first Applicant's gametes, relying on the Applicants' credible evidence and the physical resemblance of the children to the first Applicant. Despite suggestions to require DNA testing, the court found it unnecessary, accepting the evidence as sufficient.

Regarding the surrogate mother's consent, the court emphasized the legal and emotional significance of the surrogate's role, referencing established case law that recognizes the surrogate as the "natural parent." The law requires valid consent to be given no earlier than six weeks after birth. However, the Act allows dispensing with consent if the surrogate cannot be found or is incapable of giving agreement.

The court scrutinized the Applicants' efforts to locate the surrogate, concluding that all reasonable steps had been taken, including engaging an enquiry agent whose report confirmed the surrogate could not be found at the provided address. The court acknowledged the Applicants had been misled by the clinic and accepted that the surrogate's agreement could be dispensed with on the grounds of her unavailability, while cautioning future applicants to establish clear communication lines with surrogates before birth.

On retrospective authorisation of payments, the court reviewed relevant case law outlining that payments exceeding reasonable expenses are contrary to public policy. The court balanced this with the paramount consideration of the child's welfare, noting that refusal to grant parental orders would likely harm the child. The payments made by the Applicants, approximately £17,000, were found to be less than in comparable cases where retrospective authorisation was granted. Given the Applicants acted in good faith without intent to defraud, the court authorised the payments retrospectively.

Having found all statutory requirements satisfied, including domicile, application timing, and parental status, and having dispensed with the surrogate's consent due to her untraceability, the court made the parental orders accordingly.

Holding and Implications

The court GRANTED parental orders under section 54 of the Human Fertilisation and Embryology Act 2008 in favour of the Applicants with respect to the twins, D and L.

The order dispensed with the surrogate mother's consent on the basis that she could not be found despite reasonable efforts. The court also retrospectively authorised the payments made for the surrogacy arrangement, finding them not to exceed reasonable expenses and not contrary to public policy.

The direct effect of this decision is to legally recognise the Applicants as the parents of the twins, enabling the release of original birth certificates and confirming the children's legal status in the United Kingdom. The court emphasized the paramount importance of the children's welfare throughout its analysis. No new legal precedents were established, but the decision provides judicial commentary on the application of section 54 in complex international surrogacy cases, particularly regarding consent and retrospective authorisation of payments.