Proportionality and Good Faith

Background

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.

Both surrogates became pregnant; X (a boy) and Y (a girl) were born just days apart. The children were full biological siblings, conceived using Mr. A’s sperm and the same anonymous egg donor. Following their births, the children were cared for by Mr. and Mrs. A, eventually obtaining British passports and moving to the UK. The parents سپس applied for parental orders under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA).

Contentions of the Parties

The primary legal obstacle was Section 54(8) of the HFEA 2008, which prohibits payments beyond “reasonably incurred expenses” unless authorized by the court.

• The Applicants: Mr. and Mrs. A admitted that the payments made—approximately 230,000 rupees (about £3,015) to each surrogate—likely exceeded reasonable expenses and contained an element of profit. However, they argued they had acted in good faith, the payments were not so disproportionate as to be an affront to public policy, and that the children’s best interests necessitated the orders.
• The Children’s Representative: Representatives for X and Y agreed that while the payments were not “reasonable expenses,” they were not of such magnitude to “overbear the wills” of the surrogates. They argued that the children’s lifelong welfare should be the court’s primary focus.

The Judge’s Decision

Sir Nicholas Wall, President of the Family Division, granted the parental orders for both X and Y. He retrospectively authorized the payments made to the Indian surrogates, concluding that the legal requirements for the orders had been met and that such an outcome was in the children’s best interests.

Reasoning of the Judgment

The court’s reasoning centered on three key factors:

1. Paramountcy of Welfare: Under the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the child’s welfare is now the “paramount consideration” throughout their life. This marked a shift from previous standards where welfare was merely a “first consideration”.
2. Public Policy vs. Child Interests: The judge acknowledged the difficulty of balancing the prohibition of commercial surrogacy against the welfare of a child already settled with a family. He noted that refusing an order would “gravely compromise” the children’s welfare.
3. Proportionality and Good Faith: The judge found Mr. and Mrs. A to be “entirely genuine and straightforward”. While the precise use of the money by the clinic was unclear, the sums were not considered disproportionate relative to the economic circumstances of the surrogates (who worked as a maid and a housekeeper).

Conclusion

In Re X and Y, the High Court affirmed that while the judiciary must scrutinize international surrogacy for signs of “buying” children, the lifelong welfare of the child is the overriding factor. By retrospectively authorizing payments that exceeded expenses, the court prioritized the legal security and stability of the children’s relationship with their intended parents.