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Guidance given on allocation of international surrogacy cases in which parental orders are sought

Russell J hears case involving surrogacy arrangement made in India

Mrs Justice Russell has issued guidance, approved by the President of the Family Division, in respect to applications for parental orders under the Human Fertilisation and Embryology Act 2008 section 54.

In Re Z (Foreign Surrogacy: Allocation of Work) (Guidance on Parental Order Reports) [2015] EWFC 90 Russell J was concerned with a case involving a commercial surrogacy agreement made in India between a gestational surrogate (Y) and two British citizens (XZ and ZZ). Consequently, following in-vitro fertilisation two non-identical twin girls (L and M) were born to Y on 5th May 2014. The two British citizens then issued applications for parental orders on 1st August 2014. However, the babies did not leave India with the applicants until May 2015. This delay was caused by difficulties in obtaining travel documents for the children. The proceedings had not been allocated to a specialist High Court judge and it was submitted that this failure to allocate the case appropriately increased the delay in resolving the matter.

At paragraph 73 of her judgment, Ms Justice Russell set out guidance as to the allocation of cases concerned with international surrogacy in which parental orders are sought. Expressly, any application for a parental order relating to children born outside the UK (under the Human Fertilisation and Embryology Act 2008, section 54) must be allocated to a High Court judge. Further, at paragraph 86 of the judgment, it is stated that in completing a parental order report the reporter must meet the child with the applicants in order to assess properly the child's welfare. The only occasions in which such a meeting is not required is when there is already adequate independent evidence to satisfy the matter or if there are 'compelling and exceptional reasons based on the child's welfare' which preclude such a meeting.

For the judgment and summary (reproduced here) by Sara Hunton of Field Court Chambers, please click here.