A judge has criticised ‘intended’ parents for failing to undertake sufficient due diligence when considering surrogacy - and has issued a warning for others intending to do the same.
In D & Anor v K, Mr Justice MacDonald set out 18 questions parties should have answers to before any surrogacy arrangement goes ahead. Questions include the legal framework in the country where the surrogacy arrangement is due to take place and where the child is to be born, if the surrogate speaks and/or reads English so she can understand any agreement signed, and proposed contact between the intended parents and the surrogate during the pregnancy and after the birth.
It was ‘important for intended parents to seek legal advice from a specialist solicitor before embarking on surrogacy arrangements involving a foreign jurisdiction,’ the judge said, adding that the case ‘is another example of intended parents failing to undertake sufficient due diligence with respect to the arrangements they entered into by way of an international surrogacy agreement’.
D and C, who are not named in the judgment, sought a parental order for G, who was conceived and born in China via surrogacy. The surrogate, K, is a Chinese national. Surrogacy is illegal in China and surrogacy arrangements are generally held to be invalid by Chinese courts.
D and C, the judgment noted, ‘were entirely unaware that commercial surrogacy was illegal’. The couple told the court: ‘Had we possessed a full and accurate understanding of the legal restrictions at the time, we would not have proceeded under those terms.’
The judge found it was appropriate to make a parental order as it was in G’s best interests, but described the couple’s choices as an ‘unwise course’.
He added: ‘I make clear that had it not been for the ability of the parental order reporter to meet K by video link, confirm her identity and witness her signing the requisite form, in addition to speaking to her and ascertaining she had no wider concerns notwithstanding the illegality of surrogacy in China and the discrepancies regarding the amounts paid to her, the court would have had no power to dispense with her consent.’
The court also ‘reluctantly’ authorised retrospectively the payments made by D and C in relation to the surrogacy arrangements.
The judge added a warning to his judgment for those considering commercial foreign surrogancy. He said: ‘I wish to make plain... that this decision is not a licence to engage in unlawful commercial surrogacy arrangements abroad. Whilst on the facts of this case the court has felt able to grant an order in this case notwithstanding the significant difficulties outlined in this judgment, that does not mean it will do so in every future case.
‘Would-be parents who are contemplating entering into a commercial foreign surrogacy arrangement should be in no doubt that court will not make a parental order simply because the court is presented with an apparent fait accompli based on the fact that the subject child is already in the care of the intended parent.’
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