Domicile

Background

The applicants were a same-sex couple: A, born in Poland, and B, born in the United States. After living together in Tennessee, where their union was not recognized, they moved to England in 2008 to live in a jurisdiction that offered legal protection and tolerance for same-sex families. They settled in the UK, ran a business together, and severed all financial ties with the US.

In 2011, they entered into a surrogacy agreement through a clinic in India. B was the biological father, using an anonymous Indian egg donor. Following the child’s birth in March 2012, they returned to the UK. After initially obtaining an incorrect legal order, they applied for a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA).

Contentions of the Parties

The primary legal challenge involved the “gateway requirement” of domicile under Section 54(4)(b) of the HFEA 2008, which requires at least one applicant to be domiciled in the UK. Because neither applicant was born in the UK, they had to prove they had abandoned their domiciles of origin (Poland and the USA) and acquired a domicile of choice in England.

Additionally, the court had to address payments made to the surrogate totaling approximately £2,958, which exceeded “reasonably incurred expenses” and required retrospective court authorization under Section 54(8).

The Judge’s Decision

Mrs. Justice Theis granted the parental order. She ruled that the applicants had successfully discharged the burden of proving they were domiciled in England at the time of the application. Furthermore, she exercised her discretion to retrospectively authorize the payments made to the surrogate mother in India.

Reasoning of the Judgment

The court’s reasoning focused on three main pillars:

• Acquisition of Domicile: The judge found a “strong motivation” for the couple to move to the UK permanently to avoid discrimination and secure legal protection for their family. Their actions—selling their US home, cutting all ties with their birth countries, and intending to remain in the UK indefinitely—clearly demonstrated the abandonment of their domiciles of origin.
• Authorization of Payments: The court found that the applicants acted in “good faith” and without “moral taint”. Although the payments were significant in the Indian context, there was no evidence they “overbore the will” of the surrogate or constituted “buying” a child. The agreement was entirely legal in India.
• Child Welfare: Under the Adoption and Children Act 2002, the child’s welfare is the paramount consideration. The judge concluded that the child required “life-long security and stability,” which could only be provided by a parental order that legally secured his relationship with the two men who had cared for him since birth.

Conclusion

Re A and B highlights that while domicile is a strict jurisdictional requirement, it can be satisfied by demonstrating a clear, life-long commitment to residing in the UK. The judgment underscores the court’s willingness to prioritize a child’s need for legal certainty and stability over technical or public policy objections regarding foreign commercial surrogacy.