It is very important for Intended Parents from the UK who are utilizing a surrogate/gestational carrier in the United States to follow specific instructions. I have written a blog on this issue in the past. However, there is a new decision in the UK that helps explain what is needed and explain what the though process is for a Judge in the UK. The decision can be found at ttp://www.bailii.org/ew/cases/EWHC/Fam/2013/2408.html.
The following analysis was processed in the case:
- There must be a biological connection between the child and one of the intended parents.
- The carrier can not be biologically related to the child.
- The court assessed the status of the applicant’s (the intended parents) relationship, considering that they had been in a relationship for ten years and married eight years.
- The application must be issued within six months after the child’s birth.
- The child must be in the care of the applicants at the time the application was made and at the time that the court is considering the order and at least one of the applicants must be domiciled in the UK.
- The applicants must be over the age of 18.
- The gestational carrier and her husband must give unconditional consent to the application. The consent should be given freely and with full understanding of what is involved. The carrier’s consent should be more than six weeks after the child’s birth. The court bolstered the argument that there was consent by acknowledging that there was also agreement by the gestational carrier and her husband to a pre-birth order and that there was the original surrogacy agreement entered into.
- The court found that the child’s welfare was best met with a parental order. What is interesting is that the a “Parental Order Reporter” had to investigate the matter on behalf of the court. It is really a “home study” as we see it in the United States and it required consideration under the UK’s Adoption and Children Act 2002. The paramount consideration is the lifelong welfare of the child. What this says to me is that the Court could find the intended parents to not be suitable parents and still deny the parentage. The investigator set out her professional judgment in the case as follows: “C[hild] is living in a home environment where he is cherished and loved. There are no concerns that he is at risk of harm in the care of [the intended parents] and, in my view, it is in his best interests to remain in their care. It would be beneficial to C[hild] that his parents are willing to talk openly about his origins.” I am blown away by the last statement. While I do not disagree with it I am shocked it was part of the record and even considered as a recommendation.
- The last consideration for the court was that it must be satisfied that no money or other benefit, other than for expenses reasonably incurred, has been given or received by either of the applicants for, or in consideration of, the making of the order, any agreement to be in a relationship/married, the handing over of the child to the applicants, or the making of any arrangement with the view to the making of the order unless authorized by the court. This was probably the biggest risk in this Case for failure. The Court assessed that compensation was paid to the gestational carrier, her expenses were reimbursed, an agency fee was paid, an egg donor payment was made, and payment were made for medical treatment. The two payments the court found questionable were the payments to the gestational carrier and her husband that were not for identifiable expenses and the agency fee. The court found that the agency fee was partially for the agencies expenses but it could not identify how much. To determine if the court is to authorize payments such as these, the court must look at a number of factors: Was the sum paid disproportionate to reasonable expenses? Were the applicants acting in good faith and without moral taint? Were the applicants’ party to any attempt to defraud the authorities? The court was satisfied that the payments in this case should be authorized. The Court was satisfied that the sums which were paid were not disproportionate to the reasonable expenses even with a compensation value (the payments the court did not believe were for expenses reasonably incurred) of $51,200. The court found that the $51,200 did not overbear the will of the surrogate and were not of such a level to be an affront to public policy. They were payments permitted in the jurisdiction in which they were made, and were not too dissimilar to payments made in similar cases. The Court found that the information on carrier demonstrated that she was altruistically motivated to become a surrogate mother and to assist the intended parents to have a much wanted child. She had been a surrogate before and had the benefit of detailed prior discussions and legal advice before entering into the agreement with the applicants and had a clear understanding of the process and issues involved. She formed a positive relationship with the applicants and she wholeheartedly supports the applicants’ wish to be treated as the child’s parents. The court was also moved that the intended parents acted in good faith in their involvement with the authorities, followed all US requirements, followed all UK requirements, and furnishing the court with all the information which it required. The finding was that there was no ‘moral taint’ in the applicants’ dealings with the respondents or with the authorities. It is also clear from the applicants’ statements that the surrogacy arrangement was entered into with care and thought and in respect of a much-wanted child, and does not represent the simple buying of a child overseas.
This is a relief!!!!! I never though that such a high compensation value would pass muster in the UK. We will have to reach out to our UK counterparts such as Natalie Gamble to determine how this decision sets the tone in the UK. Will other Judges come to the same decision? Is this a consistent decision? I will seek a guest blog entry from Ms. Gamble and keep you informed!