Extraterritoriality

Background

The applicants, a married couple domiciled in England, entered into a surrogacy agreement in Ukraine. The surrogate, a married Ukrainian woman, was implanted with embryos created from the male applicant’s sperm and an anonymous donor’s eggs. Under Ukrainian law, the applicants were the legal parents from birth; however, under the Human Fertilisation and Embryology Act 1990, the surrogate was the legal mother and her husband was the legal father. This created a “grave” situation where the twins were effectively stateless and parentless, marooned in Ukraine until granted discretionary leave to enter the UK for these proceedings.

Contentions of the Parties

The case hinged on two primary legal conflicts:

• Extraterritoriality and Consent: The applicants argued that Section 28(2) (treating a surrogate’s husband as the legal father) should not apply to a foreign-domiciled husband. The children’s guardian argued the statute’s “plain meaning” applied regardless of domicile, making the Ukrainian husband’s consent an absolute requirement for a parental order.
• Commercial Payments: The applicants paid the surrogate €25,000 plus monthly installments—sums that significantly exceeded “expenses reasonably incurred”. Under Section 30(7) of the 1990 Act, the court had to decide if it could retrospectively authorize these commercial payments.

The Judge’s Decision

Hedley J granted the parental order, providing a pathway for the children to become legal members of the applicants’ family. He ruled that:

1. Section 28(2) applies extraterritorially, meaning the Ukrainian husband was the legal father and his consent was mandatory.
2. The court has the power to retrospectively authorize excessive payments.
3. The Human Fertilisation and Embryology Act 2008, through Section 54 (the successor to Section 30 of the 1990 Act), would eventually broaden access to these orders, but the core principles of welfare and authorization remain central.

Reasoning of the Judgment

The court’s reasoning balanced strict public policy against the immediate needs of the children:

• Welfare Paramountcy: Hedley J determined that the “lifelong” welfare of the children was the decisive factor. He noted that by the time such cases reach the court, a child’s welfare would be “gravely compromised” by a refusal to make the order.
• Policy vs. Reality: To authorize the commercial payments, the judge used a three-part test: (1) was the sum disproportionate? (2) were the applicants in good faith? and (3) was there an attempt to defraud the authorities?. Finding no “moral taint,” he authorized the payments to prevent the children from remaining in a legal vacuum.

Conclusion

As the first leading international surrogacy decision, In re X established that the court’s discretion to protect a child’s welfare can override the public policy prohibition against commercial surrogacy. However, Hedley J cautioned that the process remains a “thorn forest” of legal and immigration pitfalls, emphasizing that cases involving international conflicts or commercial elements must be scrutinized by the High Court. Acknowledging the evolution of the law, he noted that Section 54 of the 2008 Act would soon extend these parental rights to unmarried and same-sex couples.