1. 4 PAPER BUILDINGS
Surrogacy : Law and Procedure
What is Surrogacy?
A SEMINAR ON 2 OCTOBER 2013
Julia Townend

2. SURROGACY: LAW AND PROCEDURE
WHAT IS SURROGACY?


The practice whereby one woman carries a child for another with the intention that the child
should be handed over at birth.
Surrogacy may be partial (where the surrogate mother who gives birth to the child is the
genetic mother and the egg is fertilised by the sperm of the commissioning father) or total
(where the surrogate mother who gives birth to the child receives an egg into her womb
which is either already fertilised usually by way of IVF).
The law and procedure relating to surrogacy is set out in the Human Fertilisation and
Embryology Act 2008 (‘HFEA 2008’), the Human Fertilisation and Embryology (Parental
Orders) Regulations 2010 (‘2010 Regulations’) and FPR 2010, Part 13 (and some rules in
FPR 2010, Part 12) as well as the case law. Surrogacy arrangements are regulated by the
Surrogacy Arrangements Act 1985.
THE STATUS OF AND INVIDIVUALS INVOLVED IN SURROGACY
AGREEMENTS

The surrogate mother: Treated as the child’s legal mother (section 33(1) HFEA 2008) and
thus she automatically has parental responsibility for the child. The surrogate mother’s
parental responsibility for the child can only be extinguished in two ways:
1) By the making of a parental order pursuant to section 54 HFEA 2008; or
2) Query, through the adoption of the child.

The commissioning father: The genetic father of the child.
If the surrogate mother is married (and unless it is proved that her husband did not consent
to the insemination – s35(1) HFEA 2008), the husband of the surrogate mother will have
parental responsibility.
If the surrogate mother is not married the father will be in the same position as any other
unmarried father but is likely to be the legal father. He is entitled to seek a parental
responsibility order (section 35(1) HFEA 2008).

The commissioning parents: Will not have parental responsibility for the child unless by
order of the court. Surrogacy arrangements are not legally binding in this jurisdiction, which
makes a parental order vital.

Surrogacy arrangements: The arrangement of surrogacy on a commercial basis is a
criminal offence (Surrogacy Arrangements Act 1985). Of course commercial surrogacy is
legal and sometimes regulated in overseas jurisdictions – USA, Ukraine, India to name a few.

3. Non-commercial surrogacy arrangements are not illegal in this jurisdiction. Lawyers in the
UK must not negotiate a surrogacy agreement.
OBTAINING A PARENTAL ORDER
Section 54 HFEA 2008 outlines the provisions relating to the making of parental orders.
The Applicants
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Parental orders are available to married couples, to civil partners and to couples
living as partners in an enduring family relationship (section 54(2) HFEA 2008). It
is not possible for a single person to apply for a parental order. If, after issuing, one of
the applicants dies the court retains jurisdiction to grant a parental order in respect of
both applicants (A v P (Surrogacy: Parental Order: Death of Applicant) [2012] 2 FLR
145).
Both members of the couple must be over the age of 18 when the order is made
(section 54(5) HFEA 2008).
Conditions for the making of a parental order
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Child must have been conceived as a result of either partial or total surrogacy and using
the gametes of at least one of the commissioning parents (section 54(1) HFEA
2008).
Child must be living with the commissioning parents at the time of the application
and at the making of the order (section 54(4)(a) HFEA 2008).
At least one of the couple must be domiciled in the UK, Channel Islands or Isle of
Man at the time of the application and at the making of the order (section 54(4)(b)
HFEA 2008).
On the question of domicile see A v B (Parental Order: Domicile) [2013] EWHC 426
and Z and B v C (Parental Order: Domicile) [2011] EWHC 3181
NB there is no similar requirement in respect of the surrogate mother – if she is
domiciled abroad and the child is born abroad a parental order may still be made.
The application must be made within six months of the birth of the child (section
54(3) HFEA 2008) NO EXCEPTIONS.
The surrogate mother (and father if relevant) agree freely, unconditionally and with
full understanding of what is involved to the order being made unless they cannot be
found or are incapable of giving agreement.
Such agreement must not be given within six weeks of the birth of the child (section
54(6) and section 54(7) HFEA 2008).
Any agreement must be completely, properly and professionally translated when put
before the court.
Other than for expenses reasonably incurred no money or benefit has been given or
received in consideration for the making of the order, the handing over of the child, or

4. the arrangements unless the court authorises the payment (which it may do so
retrospectively) (section 54(8) HFEA 2008). This legislative power has been applied in all
commercial surrogacy overseas cases.
There appears to be no tariff or guidance in terms of quantum in respect of reasonable
expenses.
Considerations for the court
The welfare of the subject child is paramount and should be considered throughout his or her entire
lifetime (Paragraph 2 and Schedule 1 2010 Regulations). Section 1 of the Adoption and Children Act 2002
applies to applications for parental orders.
Revocation
Parental orders have the same legal status as adoption orders.
There is no statutory provision for revocation of a parental order other than by appeal. See G v G
(Parental Order: Revocation) [2012] EWHC 1979
Refusal of surrogate to relinquish care
Commissioning parents may seek a residence order pursuant to section 8 CA 1989 or care and control of
the child under the inherent jurisdiction of the High Court. Such applications will be decided on the basis
of the child’s welfare.
See Re TT (Surrogacy) [2011] EWHC 33.
Procedure: FPR 2010, Part 13
Application
Form C51
Applicants
Husband and wife/civil partners/couple in an enduring family relationship
(FPR 2010, r. 13.3(1))
Respondents
Birth mother (surrogate)
Husband of surrogate (if any)
Other person with parental responsibility
Other person in whose favour there is provision for contact
(FPR 2010, r. 13.3(2))
The court may make any other person (child through guardian) or body (local
authority or Home Office) a party to proceedings
Court
Family Proceedings Court
(Article 5(2) ATPO 2008)

5. Notably following Re L (A Minor) [2010] EWHC 3146 international surrogacy cases
are transferred to the High Court via the County Court, which an administrative
process.
Notice
To any local authority or voluntary organisation that has at any time provided
accommodation for the child (FPR 2010, r. 13.6(2))
To a person with foreign parental responsibility on Form C6AT (FPR 2010, r. 13.4)
Service
14 days prior to first directions hearing (FPR 2010, r. 13.6(1))
Acknowledgment Within 7 days of service (FPR 2010, r. 13.7)
of service
Parental order
reporter
To be appointed by the court as soon as practicable after issue of the application
(FPR 2010, r. 13.5(1)(a)(iii))
Where consent is
not required
Applicant to file statement of facts setting out basis for person in question being
unable to be found/being incapable of giving consent
(FPR 2010, r. 13.10(2))
Proof of consent
On form A101A or a form to like effect
(FPR 2010, r. 13.11(1))
Any form of agreement witnessed outside the UK should comply with the formalities.
Order
Order on Form C53 or refusal on Form C54
SOME OF THE CASE LAW
AUTHORITY
DETAILS
Re X and Y (Foreign Surrogacy) [2008] EWHC
3030
Ukranian surrogacy arrangement in which €27,115
was paid to a surrogate mother who used it for a
deposit on a new home.
The parental orders were made in respect of the
twins born.
Consideration was given to the approach to
deciding whether to authorise a payment other than
for expenses reasonably incurred.
The court considered that the court poses three
questions:
1) Was the sum paid disproportionate to reasonable
expenses?
Hedley J
2) Were the applicants acting in good faith and

6. without moral taint in their dealings with the
surrogate mother?
3) Were the applicants party to any attempt to
defraud the authorities?
The court held that the lifelong perspective of the
child’s welfare (ACA 2002) should be preferred
over the minority perspective (CA 1989).
Attention was drawn to the potential pitfalls and
difficulties which lie ahead for commissioning
parents who seek to use a foreign surrogate
mother.
Re S (Parental Order) [2009] EWHC 2977
Hedley J
Californian surrogacy arrangement in which
$23,000 (including expenses) was paid. The foreign
surrogacy agreement was retrospectively approved.
The court identified three considerations:
1) Court must take account of the need to ensure
the spirit of the English law is not breached.
2) Court must be astute not to approve an
arrangement seeming to facilitate the purchase of
children abroad.
3) Court should be astute to ensure the sums
involved are not such as to overbear the will of the
surrogate.
Re L (Commercial Surrogacy) [2010] EWHC 3146
Hedley J
Commercial surrogacy agreement in the USA.
It was held that welfare is no longer merely the
court’s first consideration but becomes its
paramount consideration.
Any payment described as compensation or a
similar word is prima facie a payment beyond
reasonable expenses requiring scrutiny.
Hedley J stated that “it will only be in the clearest case of
abuse of public policy that the court will be able to withhold
an order if otherwise welfare considerations support its
making” [10] but that “notwithstanding the paramountcy
of welfare, the court should continue carefully to scrutinise
applications... with a view to policing the public policy
matters” [12].
It was stated per curium that lateral transfer of
cases from the Family Proceedings Court to Inner
London FPC should be considered where cases
have an international element (it has specialist
expertise).

7. Re TT (Surrogacy) [2011] EWHC 33
Baker J
A couple searched, through surrogacy websites, for
a woman prepared to give birth to a child for them.
The single mother approached the couple and
offered her services as a surrogate and an unwritten
surrogacy agreement was reached.
The couple paid the surrogate mother £4,500 and
bought her maternity clothes.
The mother changed her mind and decided she
wished to keep the child in due course.
When the child was 7 days old the father applied
for a residence order and the surrogate mother
sought the same. A parental responsibility order
was made by consent in favour of the father.
A residence order was made in favour of the
mother but with a defined interim contact order in
favour of the father, relisting the case for review.
Re IJ (Foreign Surrogacy Agreement: Parental
Order) [2011] EWHC 921
Hedley J
Ukrainian surrogacy agreement whereby the male
applicant donated sperm to fertilise an anonymous
donor’s egg. The surrogate mother was married
and under UK law the surrogate and her husband
were the child’s legal parents (the opposite was true
in the Ukraine) which caused problems when the
applicants sought immigration clearance for the
child into the UK.
The parental order was granted and it was held that
notice to the Home Office of a parental order
application was not necessary as a matter of course
in cases involving overseas surrogacy.
The Border Agency was intimately involved in the
immigration procedures for such cases and leave
was almost inevitably given.
Re X and Y (Parental Order: Retrospective
Authorisation of Payments) [2011] EWHC 3147
The applicants commissioned two surrogates
through a fertility clinic in India. Both the
surrogates and the husband of one of them signed
documentation such that they renounced all legal
rights to any child born of the agreement.
The male applicant was the biological father of the
children and they were conceived using the same
egg donor.
The doctor at the clinic claimed 230,000 Rupees
had been paid to each surrogate whilst the parents’
lawyer maintained it had been the agreed 200,000
Rupees.
Parental orders were made. Although the payments
made went beyond reasonable expenses they had
Wall P

8. not been disproportionate and it was in the welfare
interests of the children to make the parental
orders.
A v P (Surrogacy: Parental Order: Death of
Applicant) [2011] EWHC 1738
Theis J
Z and B v C (Parental Order: Domicile) [2011]
EWHC 3181
Theis J
G v G (Parental Order: Revocation) [2012] EWHC
1979
Hedley J
A married couple entered into a surrogacy
agreement with an Indian clinic. The husband was
definitely the child’s father and it was possible that
the wife was the child’s mother.
The total payments made in this case were about
£4,500.
Five months after the application for a parental
order was issued the husband died of liver cancer.
The parental order was granted. It was held that the
court should interpret section 54 HFEA 2008 so
that the death of the applicant husband did not
prevent the making of a parental order in favour of
his wife: but for the husband’s death the child
would have remained in the couple’s joint care.
Two Israeli male applicants in a same-sex
relationship had lived in the UK for 4 years. They
applied for parental orders in respect of twins
conceived via an Indian surrogate with a South
African egg donor and using sperm from one of
the fathers.
Upon birth the twins were granted Israeli passports
whereupon they were taken to Israel and eventually
granted entry clearance to the UK.
The court found the English domicile requirement
established, namely that there was a fixed intention
to remain permanently or indefinitely in this
jurisdiction.
A married couple had a child via a surrogacy
arrangement but separated shortly after the child’s
birth (following which the wife cared for the child
with the husband having contact).
£10,000 changed hands as part of the arrangement.
The husband (biological father) had parental
responsibility by virtue of section 4(1) CA 1989 but
the wife had no legal or biological status.
A Circuit Judge made a parental order absent any
parental reporter’s report or analysis of section
58(4) HFEA 2008. The procedural requirements
were not complied with.
Following separation section 8 CA 1989
proceedings were commenced. The husband
sought to have the parental order set aside .

9. The court refused the application to set the
parental order aside. The court considering such
application should be guided by the authorities on
revoking adoption orders. There was no statutory
power to set aside a parental order and no inherent
power other than in exceptional circumstances.
Re D and L (Surrogacy) [2012] EWHC 2631
Baker J
Two male civil partners entered a surrogacy
arrangement through a clinic in India and paid
sums equivalent to approximately £17,000.
The clinic that arranged the surrogacy in India told
the applicants that the surrogate could give her
consent just three or four weeks after the birth.
The surrogate subsequently disappeared and
neither she nor the clinic could be contacted.
The surrogate’s consent was not valid for the
purposes of section 54(6) HFEA 2008 (given less
than six weeks after the birth) so the court
dispensed with her consent on the basis she could
not be found.
Re A and B (Parental Order: Domicile) [2013]
EWHC 426
Two men living in the UK (one born in Poland the
other born in the USA) moved to the UK and
entered into a surrogacy agreement via a clinic in
India whereby one of the men was the biological
father and the egg donor and surrogate mother
originated from India.
The child was issued with a US passport and was
granted entry clearance to the UK.
Upon their return to the UK the non-biological
father applied for a parental responsibility order
(wrongly believing the biological father already had
parental responsibility).
The order was incorrectly granted and subsequently
substituted with a parental order. The men satisfied
the domicile requirement
Theis J
Re C [2013] EWHC 2408
Theis J
Californian surrogacy arrangement in which
compensation to the surrogate was $38,000.
Parental order granted.
J v G [2013] EWHC 1432
Theis J
Twins were born pursuant to a Californian
surrogacy arrangement.
The Applicants paid the British Surrogacy Centre
of California which operates from an address in
Essex £3,500 for the consulting services provided.
The Judge sent a copy of her judgment (which
quotes the agreement signed between the
Applicants and the British Surrogacy Centre) to the

10. Department of Health which has regulatory
responsibility in this area.
The Applicants made payments to surrogate
mother totalling $56,750.
Parental orders were granted.
The court warned that parental orders must be
applied for within six months of the child’s birth
and the court has no power to extend that period.
Re P-M [2013] EWHC 2328
Theis J
Californian surrogacy arrangement. The court
considered that section 54(8) HFEA 2008 requires
consideration of payments made by the Applicants
to the commercial organisation facilitating and
arranging the surrogacy over and above the
payments to the surrogate mother. The payments
to the organisation of $21,500 had to be scrutinised
so as not to offend against public policy
requirements. The court was satisfied that the sum
paid to the agency was not disproportionate and
the Applicants acted in good faith.
AB v DE [2013] EWHC 2413
Theis J
The child was conceived through IVF treatment in
Moscow using the First Applicant’s sperm and the
eggs of an anonymous Russian donor. The child
was carried by a married Russian surrogate mother.
The total sum paid was €50,000 out of which
payments were made to the surrogate mother.
The court explored the average wage in Russia.
IMPORTANT POINTS FOR PRACTITIONERS

Section 2(1) of the Surrogacy Arrangements Act 1985 provides as follows:
No person shall on a commercial basis do any of the following acts in the United Kingdom, that is –
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to negotiate the making of a surrogacy arrangement, or
(c) compile any information with a view to its use in making, or negotiating the making of surrogacy
arrangements;
and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial
basis.
This includes lawyers! It is an offence to profit by helping someone else to make a surrogacy
arrangement so lawyers should not advise a commissioning couple about the terms of a
surrogacy arrangement. With considerable care and caution a lawyer may feel able to advise
about domestic law and how best to comply with it.
NB non-profit making organisations such as COTS and Surrogacy UK and now, Brilliant

11. Beginnings operate legally in helping surrogacy agreements to be made even if they charge
membership fees.
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The position in law can be complicated before the making of a parental order in the UK if
the child was born overseas where commercial surrogacy is legal and the child’s legal status
differs in the country of his or her birth from that which she will have in the UK.
Where the child remains abroad (and thus the English court may not have jurisdiction) it
would be premature for the court to indicate a parental order is likely to be granted, even if
this may assist with immigration entry clearance.

It was stated per curiam in Re IJ (Foreign Surrogacy Agreement: Parental Order) [2011]
EWHC 921 that those who travelled abroad to make surrogacy arrangements should take
advice from specialists in English law.

Commissioning parents should obtain immigration and family law advice before entering
into any domestic or overseas surrogacy arrangements.

The appropriate order should be obtained in the country of the child’s origin. Whilst these
will have no lawful effect here it is important that foreign formalities are observed.

If the father is genetically related to the child and his name goes on the UK birth certificate
he will have parental responsibility in respect of the child and will share it with the surrogate.

If the birth certificate is non-UK then if one of the commissioning parents is the biological
father he should sign a parental responsibility agreement before the child enters the UK in
front of a court official or another appropriate official.

A commissioning couple should redraft their wills prior to the birth of the child such that
any children subsequently born can be provided for. It will also no doubt be necessary to
review pension benefits and life insurance policies.
© Julia Townend
4 Paper Buildings
October 2013