A High Court judge has warned intended parents to carry out thorough due diligence before entering international surrogacy arrangements, after finding that a couple had failed to properly investigate the legal position surrounding their agreement.
In D & Anor v K, Mr Justice MacDonald considered an application for a parental order concerning a child who had been conceived and born in China through a surrogacy arrangement. The surrogate, K, was a Chinese national.
The case highlighted the difficulties that can arise when intended parents enter an overseas surrogacy arrangement without fully understanding the laws of the country involved. The court noted that surrogacy is illegal in China and that such arrangements are generally not recognised as valid by Chinese courts.
The intended parents had not been aware that commercial surrogacy was unlawful in China. They subsequently told the court that, had they understood the relevant legal restrictions, they would not have proceeded with the arrangement on those terms.
Although the judge ultimately decided that making a parental order was in the child’s best interests, he described the couple’s decision as an “unwise course” and emphasised that the outcome should not be interpreted as approval of unlawful overseas commercial surrogacy.
Mr Justice MacDonald set out 18 questions that intended parents should consider before entering into a surrogacy arrangement. These include understanding the legal framework in the country where the arrangement will take place and where the child will be born.
The questions also cover whether the surrogate can understand the agreement being entered into, including whether she can speak and read English where relevant. The proposed arrangements for contact between the intended parents and the surrogate during the pregnancy and after the child’s birth should also be considered.
The judge stressed the importance of obtaining specialist legal advice before entering into a surrogacy arrangement involving a foreign jurisdiction. Proper advice can help prospective parents understand the applicable laws, parental rights, financial arrangements and potential legal consequences.
In this case, the court ultimately considered it appropriate to make a parental order because doing so was in the child’s best interests. The court was also able to address issues concerning the surrogate’s consent after appropriate steps were taken to confirm her identity, communicate with her and witness the signing of the required documentation.
The court also retrospectively authorised payments connected with the surrogacy arrangement, although the judge described this as a decision made reluctantly.
The judgment contains a significant warning for anyone considering commercial surrogacy overseas. The judge made clear that the decision should not be treated as permission to enter into unlawful commercial surrogacy arrangements abroad.
The fact that a child has already been born and is living with the intended parents does not automatically mean that a parental order will be granted. Each application will depend on its individual circumstances and the evidence before the court.
The decision therefore underlines the importance of taking specialist legal advice before entering into an international surrogacy arrangement, rather than waiting until legal difficulties arise after the child’s birth.
