INTERNATIONAL SURROGACY CASE LAW (Article)

The case involved a British couple, Mr. and Mrs. A, who, after years of unsuccessful fertility treatments in the UK and Europe, were advised to explore surrogacy in India due to a shortage of surrogates in the United Kingdom. They entered into a surrogacy arrangement with a clinic in New Delhi involving two surrogate mothers, C and E, to increase the chances of a successful birth.

The applicants, a married couple domiciled in England, entered into a commercial surrogacy arrangement in Illinois, USA. The agreement was entirely lawful in Illinois but would have been unlawful if conducted in the UK because it involved payments to the surrogate mother that exceeded “reasonable expenses”. Following the child’s birth, the couple applied for a parental order under Section 54 of the 2008 Act and sought retrospective authorization for these commercial payments.

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.