Modern Welfare and Safeguarding Analysis

Background

The applicants, a male same-sex couple (A and B) living in the UK, sought to start a family through a Cypriot surrogacy agency. Although the agency was based in Cyprus, the surrogacy involved an embryo transfer in Northern Cyprus using a surrogate (X) from “Country Y,” a jurisdiction that does not permit same-sex surrogacy. Following the agency’s advice to “avoid complications,” applicant A applied as a single man, and the couple was encouraged to conceal their relationship from both the surrogate and foreign authorities. The child, Z, was ultimately born in “Country W” in January 2023, where A and the surrogate were registered as parents.

Contentions of the Parties

The application for a parental order faced several significant legal hurdles under Section 54 of the Human Fertilisation and Embryology Act 2008:

• Time Limit: The application was issued in November 2023, slightly outside the statutory six-month window following Z’s birth.
• Consent: There were concerns regarding whether the surrogate’s consent was given with “full understanding,” as she was initially unaware of the applicants’ same-sex relationship and the consent form was not notarized.
• Payments: The couple paid approximately €71,500 to the agency, a sum exceeding “reasonable expenses”.
• Public Policy: The court had to consider whether the applicants’ “risky and irresponsible” behavior—specifically pursuing surrogacy in jurisdictions hostile to their status and deceiving local authorities—should bar the order on public policy grounds.

The Judge’s Decision

Theis J granted the parental order, finding that despite the “precarious legal position” the parents had created, the child’s lifelong welfare necessitated the legal recognition of A and B as her parents. The court authorized the overpayments, accepted the slightly delayed application, and was satisfied that the surrogate’s consent had been appropriately established after she was fully informed.

Reasons for the Judgment

The court’s reasoning demonstrates the modern welfare and safeguarding analysis mandated by the 2018 Regulations:

1. Paramountcy of Welfare: Under the imported Adoption and Children Act 2002 framework, the child’s welfare throughout her life is the court’s paramount consideration. Theis J noted that a parental order was the only mechanism to provide Z with lifelong security and stability .
2. Identity and Reality: The judge emphasized that the parental order must reflect Z’s “lived reality” as a child settled in the applicants’ care . Denying the order would leave her in legal limbo, with her legal mother being a surrogate in a foreign country with whom she had no ongoing parental relationship.
3. Threshold for Public Policy: While the applicants’ behavior was “deprecated” and described as “naïve, risky and irresponsible,” it did not reach the “clearest case of the abuse of public policy” required to deny an order. The court found no evidence of exploitation or the overbearing of the surrogate’s free will.
4. Purposive Interpretation: Following established precedent, the court adopted a flexible approach to the six-month time limit, concluding that a “sensible result” required the application to proceed to protect the child’s interests.

Conclusion

Re Z stands as a stark cautionary reminder for intended parents regarding the dangers of cross-jurisdictional surrogacy and the “abdication of responsibility” in failing to perform due diligence. However, it ultimately affirms that the English court will prioritize the lifelong welfare and legal identity of the child over the procedural or ethical failings of the parents, ensuring that the “much-wanted child” is not left at risk of harm.