Court Comes to Aid of Foreign Surrogacy Couple

Anyone thinking of starting a family by entering into a foreign surrogacy arrangement should take careful note of a High Court case in which a well-meaning couple ended up in a legal tangle due to their ignorance of the law.

Twin girls were born to a surrogate mother in India after a British couple paid more than £16,000 to an agency there. They believed that they had done everything 'by the book' in that their names appeared on the children's Indian birth certificates and the surrogate mother and her husband had signed the necessary consent forms required under Indian law.

The couple had carried out research on the Internet but did not realise that they were required to obtain a parental order from an English court before their status as the girls' mother and father would be recognised. The absence of such an order meant that the surrogate mother and her husband remained the girls' legal parents under English law.

Under the Human Fertilisation and Embryology Act 2008, such an order should have been applied for within six months of the girls' birth, but the couple missed that deadline before they realised their mistake. However, in coming to the couple's aid and granting a parental order, the Court put a broad interpretation on the Act and achieved an outcome in the children's best interests.

Agreeing to waive the six-month time limit, the Court noted that the couple had acted in good faith and co-operated with the English and Indian authorities throughout. Any money which had been paid to the surrogate mother could be viewed as reasonable expenses associated with her pregnancy.

Although the couple had separated since returning to the UK with the children, they were still able to offer them a family home and the girls' lifelong welfare demanded that the couple be formally declared their lawful parents. With the stress of the litigation behind them, it was to be hoped that the couple would reach agreement on contact arrangements with the children.