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Gay couple win parental orders in surrogacy ruling

High Court rules that Indian mother of twin boys 'cannot be found'

12 October 2012

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Male civil partners who paid £17,000 to an Indian clinic to arrange for a surrogate mother should be granted parental orders recognising them as parents of twin boys, the High Court has decided.

The court heard that the couple selected an anonymous Indian egg donor before entering into a formal agreement with a clinic in Hyderabad and a woman selected to be their surrogate mother.

The prospective parents agreed to make a series of payments in dollars amounting to around £17,000. One of the men provided some sperm and twin boys were born the following year.

The couple’s solicitor had already written to the clinic to warn it that to obtain a parental order under English law, the applicants would have to prove that the surrogate mother had given her consent fully and unconditionally, more than six weeks after the birth.

Delivering judgment In the Matter of D and L [2012] EWHC 2631 (Fam), Mr Justice Baker said the couple claimed the boys two days after their birth, took them to a hotel in Hyderabad while the birth certificates were finalised and then went to New Delhi to submit passport applications.

They made further, unsuccessful attempts to contact the surrogate mother before obtaining passports for the twins and exit visas and leaving the country.

The court heard that the father emailed a letter to the clinic from the UK, setting a deadline for the production of the signed consent, but instead received a “DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture”.

The couple decided to apply to the court for parental orders without the necessary consent.

Baker J said it was “a very important element of the surrogacy law in this country” that parental orders should only be made with the consent of the surrogate mother.

“The reasons for this provision are obvious,” Baker J said. “A surrogate mother is not merely a cipher. She plays the most important role in bringing the child into the world.

He went on: “The act of carrying and giving birth to a baby establishes a relationship with the child which is one of the most important relationships in life. It is therefore not surprising that some surrogate mothers find it impossible to part with their babies and give consent to the parental order.

“That is why the law requires that a period of six weeks must elapse before a valid consent to a parental order can be given.”

Baker J said that under Section 54 of the Human Fertilisation and Embryology Act 2008, there was an exception to the requirement where “the person who carried the child cannot be found or is incapable of giving agreement”.

He said that, as far as the court was aware, this was the first time the exception had been considered.

Baker J said he accepted that the couple had taken “all reasonable steps” to obtain the woman’s consent.

“I accept that it not the applicants’ fault that they found themselves in this position. I am satisfied that they reasonable believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.”

Baker J added: “In future cases, however, applicants and their advisors should learn the lessons of this case, and take steps to ensure that clear lines of communication with the surrogate are established before the birth to facilitate the giving of consent after the expiry of the six week period.”

He granted the parental orders.

In December last year, Sir Nicholas Wall, former president of the Family Division, made parental orders in favour of a couple who obtained two children by paying surrogate mothers in India, despite admitting that it was unclear how much money the surrogates received and what was covered.

The couple paid a clinic in Delhi over 2m rupees or £27,400 to arrange for surrogates to have the children for them, using the father’s sperm and eggs from an anonymous woman.

Giving judgment in In the matter of X and Y children [2011] EWHC 3147 (Fam), Sir Nicholas said that, although Mr and Mrs A had children from previous relationships, they spent five years unsuccessfully trying to have their own baby before considering surrogacy.

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