Avoidance of a "Legal Vacuum"

Background

The applicants, a husband and wife, had endured a 16-year journey to become parents, involving 15 unsuccessful IVF cycles across the UK, Italy, and Russia. Eventually, they entered into a surrogacy arrangement in Moscow. The child, C, was conceived using the husband’s sperm and an anonymous Russian donor egg, and was carried by a married Russian surrogate.

The applicants paid a global fee of €50,000 to a Russian agency. Of this, the surrogate received approximately £4,324 for expenses and £8,812 in compensation. Following C’s birth in 2012, the applicants cared for the child in Russia for six months before returning to the UK. Under Russian law, the applicants were recognized as the legal parents, while the surrogate and her husband had no parental rights.

Contentions of the Parties

The case hinged on whether the court could grant a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). Two primary issues were contentious:

1. Unauthorized Payments: Section 54(8) of the HFEA prohibits payments other than “reasonably incurred expenses” unless authorized by the court. The compensation paid to the surrogate and the profit retained by the agency clearly exceeded this threshold.
2. Lack of Candour: Initially, the applicants applied for a British passport for C without disclosing the surrogacy, fearing they could not obtain a passport if the truth were known. They only corrected this after seeking specialist legal advice.

The Judge’s Decision

Mrs. Justice Theis granted the parental order and retrospectively authorized the payments made to the agency and the surrogate. The court was satisfied that all other statutory criteria—such as the biological link, the applicants’ marriage, and their UK domicile—had been met.

Reasoning of the Judgment

The court’s reasoning focused on balancing public policy against the child’s lifelong welfare:

• Proportionality of Payments: The court found the payments were not so disproportionate as to be an “affront to public policy”. Evidence showed the compensation was within the standard range for surrogacy in Russia and equated to approximately 1–2 years’ average wage in that region. There was no evidence that the surrogate’s will had been “overborne” by the money.
• Good Faith and “Moral Taint”: Despite the applicants’ initial failure to be candid with immigration authorities, the judge found they had acted in good faith. Their actions were attributed to outdated legal advice and a desperate desire to bring their child home rather than an attempt to “buy” a baby or circumvent child protection laws.
• Avoidance of a “Legal Vacuum”: Most importantly, the judge emphasized that without a parental order, C would be left in a “legal vacuum”. In the UK, the surrogate and her husband remained the legal parents, yet they had no biological link to C and no intention of parenting him. The child’s welfare demanded the lifelong security that only a parental order could provide.

Conclusion

In Re C, the court reaffirmed that while it must guard against the commercialization of surrogacy, the paramount consideration is the child’s lifelong welfare. By authorizing the payments and granting the order, the court ensured the child’s legal status reflected his biological and social reality, granting him full legal membership within his family