PollenTree

Re X & Y (2008) UK

Whilst it is true that in the UK it is illegal to pay fees to a surrogate (other than reasonable expenses) a recent important case heard in the UK has retrospectively authorised payments to a foreign surrogate. In the case of Re X & Y (foreign surrogacy) [2008] EWHC 3030 (Fam) which was heard in December 2008, an English couple entered into a surrogacy arrangement with a married Ukrainian woman who had her own children. A lump sum 0f 25,000 euros was paid plus further monthly payments. The surrogate gave birth to twins. However, there was a conflict between English and Ukrainian law. Under Ukrainian law it was recognised that once the surrogate had given birth and handed the children over to the English couple the Ukrainian couple had no further legal responsibility for the children. However, under English law the couple were not treated as the children’s parents unless and until the court had granted a ‘Parental Order’. The High Court therefore had to look at whether the current law in the UK could be used to cover foreign surrogacy arrangements. The Court held that the Human Fertilisation and Embryology Act 1990 could apply even though the surrogacy happened abroad. However, in order for the Act to apply the issue of the payments made to the surrogate had to be resolved. The High Court made a ground breaking decision to authorise the payments in this case. However, the court made it clear that the UK still has a policy against commercial surrogacy and that every case will have to be decided on its on facts. What helped the couple in this case was that they had ‘acted in good faith’ and that they had made lots of enquiries about parenting options and made enquiries with various authorities and departments before going ahead. Lets hope this sea change will now lead to a recognition that a change in the law is long overdue.