A landmark Family Court judgment has highlighted the risks involved in international surrogacy arrangements. Granting a parental order in the case of Y & Anor. v V & Ors. [2022] EWFC 120, the judge was critical of the conduct of the intended parents and warned that in similar future cases the outcome might not be so happy.
The case involved a married same-sex couple (the applicants), who cannot be named to protect the anonymity of the children, who were seeking a parental order to become the legal parents of twins, now aged two, who had been born using a surrogate in Georgia.
The applicants had entered a surrogacy arrangement with a woman in the former Soviet republic, despite that country not permitting such agreements if same-sex couples are involved. They had used an agent who assured them there was a “hidden acceptance” of cases such as theirs, and the applicants said they knew other same-sex couples who had previously travelled to Georgia for surrogacy with no problems.
As well as uncertainty about the legality of the arrangement because of Georgia’s stance on same-sex surrogacy, the judge also had to consider questions about several payments made by the couple to the surrogate mother, and whether these could retrospectively be authorised by the court.
It also turned out the surrogate had misled the agency about her marital status, and was in fact married at the time the embryos were implanted. This made her ex-husband, whom she says she divorced before the birth of the children, a legal father whose consent would usually be required before a parental order could be granted.
Back from the brink
The various complicating factors meant there was a very real possibility of the court being forced to find against the applicants, with serious consequences for the welfare of the two children involved.
This prospect led the court to ask Andrew Spearman, partner at the London law firm Laytons ETL and a leading expert in surrogacy law, to act pro bono (without payment) on their behalf. Laytons ETL in turn instructed barrister Andrew Powell, who practises out of the specialist family law chambers 4pb, to represent the couple in court, again on a pro bono basis.
Mr Spearman said, “We know how emotionally difficult these cases can be for Intended parents, and the pressure when their decisions are questions in the cold light of day. It was a pleasure to work pro bono to help this family navigate these waters and bring this case back from the brink of disaster.”
At the time the couple applied to the court for a parental order the surrogate mother could not be located and nor could her former spouse. Through Ms Martyn's diligent investigatory work, however, the team were able to trace her via social media and make contact.
At this point she refused to provide details of her former husband, saying there was a real risk of violence toward herself and her family. This was without precedent in surrogacy cases but was resolved by referring to comparable circumstances in adoption cases, in which birth mothers had not been forced to provide details of fathers.
The court ruled that, in this instance, it could dispense with the consent of the ex-husband. Mr Spearman said, “This case sets down a precedent for dealing with second parents where the surrogate’s consent can be given freely but her spouse or civil partner cannot be found.”
Abdication of responsibility
Although she ruled that a parental order should be granted, the judge, Mrs Justice Theis, warned that a desire to become parents does not absolve couples from their responsibility to ensure arrangements are carried out in accordance with the laws both of the UK and the countries in which surrogates are resident.
She said, “Before embarking on a surrogacy arrangement (particularly one that involves arrangements in other jurisdictions) intended parents should have a clear understanding about what is required to secure their legal position in relation to any child born as a result of such an arrangement. To do otherwise leaves the future of the much longed for child at risk, in particular of not being able to secure the lifelong legal parental relationship between the intended parents and the child in the jurisdiction where they wish to live.
“By failing to take these steps prior to a surrogacy arrangement [a couple] takes considerable risks in relation to any child born as a result of such an arrangement, and could be said to be an abdication of responsibility intended parents have towards that child.”
She continued, “The applicants have admitted that their judgment was clouded, that they were aware of the restrictions about parties to a surrogacy arrangement in Georgia but say they relied upon what they were informed by the agency they used.
“Whilst that may be an explanation of why they did what they did it does not absolve them of responsibility. It needs to be understood that situations such as in this case can result in the court refusing to make a parental order.”
Mr Powell, the barrister who acted for the couple, said, “This judgment highlights the importance of individuals who are thinking about embarking on a surrogacy journey, particularly abroad, undertaking their own due diligence beforehand to ensure that they are eligible to be recognised as parents in this jurisdiction.”
An anomaly clarified
At the instigation of Mr Powell, the judgment also addressed an anomaly in S 54(2) of the Human Fertilisation and Embryology Act (HFEA) 2008 (which deals with parental orders in cases of surrogacy). This refers to “husband and wife” and was not amended to read “married couple” following the passage of the Marriage (Same Sex Couple) Act 2013.
While, in practice, the courts have historically treated S 54(2) as including same-sex marriages, it had never explicitly been clarified. The judgment in Y & Anor. v V & Ors. [2022] EWFC 120 confirmed that S 54(2) of the HFEA should apply to same-sex couples.
Mr Spearman said, “I am grateful to the court for clarifying the law for same-sex couples, which had been the court’s practice but puts it beyond doubt.”