The Family Division of the High Court has granted a couple’s application for a parental order in respect of a boy who was born to a surrogate mother in California. The case raised an important welfare issue in that the intended parents were both in their early 70s, leading the Court to suggest certain key issues that should be considered when engaging in surrogacy arrangements.
The intended parents had had difficulties in starting a family, but had had a son in 1993 following IVF treatment. Tragically, their son died of cancer at the age of 26. They hoped to become parents again and decided to use surrogacy services in California. They were matched with a surrogate, who became pregnant following an embryo transfer and gave birth to a boy in January 2024. Having travelled to California before his birth, they returned to the UK with him in March 2024 and subsequently applied for a parental order in respect of him.
The intended parents satisfied the criteria in Section 54 of the Human Fertilisation and Embryology Act 2008. Finding that there had been no abuse of public policy with respect to the payments received by the surrogate, and noting that the boy’s welfare was paramount, the Court authorised the payments. It was evident to the Court that the boy was much loved and cherished, and had a close and loving relationship with the intended parents.
The Court considered the likelihood that, as a child of elderly parents, the boy might experience loss and grief at a time when he was ill prepared to understand or come to terms with it. However, a couple in their early 30s who had been friends of the intended parents’ son had agreed to be the boy’s guardians in the event of their death or incapacity. The intended mother’s niece had also stated that she would be willing to become his guardian. Both of the intended parents’ wills provided for the boy to be the beneficiary of a discretionary trust following the death of the surviving parent. Standing back and taking a holistic view of the boy’s welfare throughout his life, the Court was satisfied that the parental order should be made.
The Court suggested that, in addition to the key issues outlined in the case of Re Z, those embarking on surrogacy arrangements should also consider what steps to take in respect of future care and financial arrangements for the child in the event of the death or incapacity of one or both of the intended parents, and what steps to take in relation to estate planning in respect of the child’s future welfare.
The Court wished the intended parents every happiness for the future and remarked that the making of a parental order was a cause for celebration.