The High Court took the opportunity given by this case to issue a stark warning to parents considering unlawful surrogacy abroad. As Sir Andrew McFarlane P noted, this case aims to draw attention “and to offer some advice for those who may, in future, unwisely seek to follow the path taken by the two applicants in this case by engaging in an unlawful, commercial, foreign surrogacy arrangement.”
Background:
Ms. W and Ms. X are in a long-established and enduring relationship and are residents of the UK. One of the applicants was over 70 and the other “was fast approaching that age”.
The couple engaged in an unlawful commercial surrogacy arrangement in the Turkish Republic of Northern Cyprus, resulting in the birth of two children, Y and Z. The children are full genetic siblings who were conceived using anonymous gamete donations albeit carried to term by two separate surrogate mothers.
The clinic was initially believed to be in Southern Cyprus but was later discovered “after the arrangements had been advanced to a significant degree” to be operating in the Turkish Republic of Northern Cyprus, where surrogacy is unlawful and placement with same-sex couples is prohibited by law.
The couple paid a significant amount, circa £120,000 for the two children. The children, who were born on the same day, were transferred to Ms. W and Ms X in a flat in which they were living in Cyprus. The couple thought they would be there for a short while only, but that did not transpire to be the case. Ms X “was encouraged by the clinic to go on her own to the Register Office and sign a form in a foreign language” which registered her as the mother of each child without any mention of a surrogacy agreement or that the children were born to two different mothers. The children did not receive Northern Cyprus citizenship, nor Ukrainian nationality, and the parents were refused leave for four years to enter the UK with the children.
The couple were encouraged to develop a false narrative that Ms. X was the natural mother of the two children but they refused to do so. Without the necessary paperwork from the clinic and validation in terms of registry of birth, the Home Office refused the children entry into the UK until leave was granted under Article 8 of the European Convention on Human Rights (ECHR).
Decision:
The High Court granted the adoption order but emphasised that this ruling should not be seen as setting a precedent and was due to the extraordinary circumstances of the case such as the children's statelessness. The Judge noted that the applicants could not seek a parental order, as the gametes of neither applicant were used to bring about the creation of the embryo. Thus their only option was to apply for adoption.
The adoption was also granted on the basis of an adoption assessment by a local authority social worker who found that the children were well taken care of. Sir Andrew McFarlane noted that “No lesser order, for example, child arrangements order or even a special guardianship order, would achieve the necessary degree of life-long certainty that these two children are going to need.” He also concluded, “If the Court had been asked before these applicants set off for Cyprus whether this was a good idea, let alone one that was legally compatible with domestic policy in these matters, the Court’s view would undoubtedly have been a negative one.”
Moreover, Sir Andrew McFarlane noted: “The publication of this judgement, and the clear indication that the Government may, in any future case, oppose the making of adoption orders, should put would-be parents (of any age) who are contemplating entering into a commercial foreign surrogacy arrangement on notice that the courts in England and Wales may refuse to grant an adoption order (or if HFEA 2008, s 54(1)(b) or s 54A(1)(b) is satisfied, a parental order), with the result that the child that they have caused to be born may be permanently stateless and legally parent-less. Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”
Implications:
This case highlights the difficulties parents can face when trying to get their surrogacy recognised, especially if the surrogacy is unlawful in the jurisdiction of the birthplace. The facts of this case offer a clear indication that the Home Office may oppose the making of adoption orders. Children born out of an illegal foreign surrogacy arrangement could be permanently stateless.
This case should serve as a cautionary tale. As the Judge noted this decision contains significant legal and public policy concerns and is a must-read for anyone interested in this topic.
