Edward Cooke Family Law represents clients in important international surrogacy case

25 March 2024

Associate Solicitor Victoria Maxwell recently represented the intended parents in the above surrogacy case which has been published in the law reports: QR (Parental Order: Dispensing with Consent: Proportionality) [2023] EWHC 3196 (Fam).

The case concerned a three year old girl who was born via a gestational surrogacy arrangement in India. The case came before Mrs Justice Knowles in the High Court in August and November 2023. Edward Cooke Family Law acted for the intended parents (the applicants) in their application for a parental order, the respondent, an Indian surrogate and her husband were unrepresented and did not attend any of the proceedings.

The case had many complexities to it, accounting for the judge’s decision to publicise her judgment on an anonymous basis in the hope it may assist other families in the future.

Time limit

The application was made out of time, ordinarily such applications should be made within 6 months of the child’s birth, however, for reasons that are made clear in the judgment, the application was not brought until the child was three years old. There is a plethora of caselaw where such applications have been allowed out of time, including where the subject “children” are in fact young adults, therefore, the judge used her discretion relying on the precedent caselaw to allow this application two years and six months out of time.

Domicile

Another layer of complexity to the matter surrounded domicile. At least one of the applicants must be able to demonstrate that they are domiciled in England and Wales. Both applicants had a domicile of origin in India, and it was therefore important that they could illustrate to the court that they had abandoned their domicile of origin and adopted a domicile of choice in England and Wales. Thankfully based on the evidence they provided to the court, Mrs Justice Knowles was convinced that the intended father had adopted a clear domicile of choice in England.

Consent

The third and most significant layer of complexity to the matter was surrounding the issue of consent. When a surrogate gives birth, under the eyes of the English court she is considered to be the legal mother. If the surrogate is married at the time of the birth her husband is also considered to be the legal father, regardless of genetics. The intended parents must therefore apply to the English court for a parental order, which transfers the legal parentage from the surrogate mother (and her husband if she has one) to the intended parents.

In order for the court to grant a parental order the surrogate (and her husband if she has one) must provide their consent to the application. The issue in this matter was that this was an “arms’ length” surrogacy arrangement. The intended parents (as is customary in India) did not have any direct contact with the surrogate. The agreement was entirely facilitated by the treating doctor. Many attempts were made on behalf of the applicants to contact the treating doctor to try and make contact with the surrogate. The time that had passed since the child’s birth exacerbated this issue as it was understood that the surrogate had in fact moved to Nepal and there was no forwarding address provided. At the time of the surrogacy arrangement the applicants were informed that the surrogate was married but was estranged from her husband. Without legal advice the applicants did not understand or appreciate the importance of obtaining the surrogate and her husband’s consent. Nor did they understand that they needed a parental order.

When the application was submitted to the court in May 2023, Edward Cooke Family Law applied for the court to be invited to dispense with the consent of both the surrogate and her husband on the basis that they could not be found (which is effectively permitted by the governing statute – s54(6)the Human Fertilisation and Embryology Act 2008). In her judgment Mrs Justice Knowles refers to consent as “the bedrock that underpins the way in which the statutory framework operates” and highlighted that the court will “exercise extreme caution” before dispensing with such consent.

The case therefore shone a spotlight on the court’s approach to consent in surrogacy cases, in particular the need for “proportionality”, and in this case the cultural sensitivities at play in India surrounding surrogacy played a huge part in the court’s approach. The applicants and the court were extremely concerned that any attempts to trace the surrogate and her husband should not compromise her safety and well-being. The applicants referenced in their evidence to the court that surrogacy in India is not regarded favourably by wider society. The element of stigma and the possible cultural repercussions underpinned the applicants’ desire to exercise caution in the steps they took to locate the surrogate and her husband. It was not clear whether the surrogate’s husband was ever made aware of the surrogacy arrangement and therefore it was imperative that her privacy was protected.

Fortunately, due to the attempts that could be illustrated to the court (mainly in trying to locate the surrogate through the treating doctor) the court was satisfied that all reasonable steps had been taken, the court dispensed with the consent of the surrogate and her husband and granted the parental order. It was at times a very fine balancing act.

Judgment

Mrs Justice Knowles stated that “the mischief in this case arose from (a) the applicants’ ignorance at the time they began their surrogacy journey of what was required by the law of this jurisdiction” and she also highlighted the dangers of arms’ length transactions, as she described the applicants having “wholesale reliance, if not utter dependence” on the treating doctor as the point of contact with their surrogate.

The case can be received as a cautionary tale to other intended parents of the dangers of not obtaining specialist legal advice when entering into arrangements in other jurisdictions and the danger of being entirely reliant upon a third party to facilitate the arrangement. Thankfully the end result of this matter was eventually a happy one, due to the careful analysis applied by the court. Mrs Justice Knowles referred to the “specialist advice” the applicants had received from Edward Cooke Family Law. Edward Cooke Family Law instructed Andrew Powell of 4PB as counsel for the applicants, an extremely specialist barrister in the field who presented the case to the court seamlessly, resulting in the overall decision in our client’s favour.

Mrs Justice Knowles cites at the end of her judgment “This case is yet another warning of the problems which might arise for those who embark on a surrogacy arrangement overseas. Many of the problems in this case would have been avoided if the applicants had informed themselves about the legal requirements for making a child born via surrogacy their own child according to the law in this jurisdiction. This case is also a cautionary tale about the problems arising with arms’ length surrogacy arrangements. That is my decision.”

You can read the full judgment here.