Welfare Paramountcy

Background

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.

Contentions of the Parties

The central legal issue was whether the court should authorize payments made in excess of reasonable expenses, which is a prerequisite for a parental order under Section 54(8). This required the court to balance public policy—which seeks to prevent the commercialization of surrogacy—against the welfare of the child. The case also highlighted the difficulties parents face regarding re-entry to the UK and the conflicting information often provided to commissioning couples.

The Judge’s Decision

Hedley J granted the parental order and gave retrospective authorization for the payments under Section 54(8). The court held that:

1. All statutory requirements of Section 54 (1) to (7) were met.
2. The child’s welfare was the decisive factor in authorizing the commercial payments.
3. The payments, while exceeding “reasonable expenses,” were not an “abuse of public policy” sufficient to withhold the order.

Reasoning of the Judgment

The reasoning centers on a critical shift in the law introduced by the 2008 Act and the Human Fertilisation and Embryology (Parental Orders) Regulations 2010:

• The Welfare Shift: Previously, under the 1990 Act, welfare was the court’s first consideration. The 2010 Regulations imported Section 1 of the Adoption and Children Act 2002, making the child’s welfare the paramount consideration throughout their life.
• Welfare vs. Public Policy: The judge noted that this shift “weights the balance… decisively in favour of welfare“. Consequently, the court will only withhold a parental order in the “clearest case of the abuse of public policy” if the child’s welfare otherwise supports making the order.
• Continuing Scrutiny: Despite the paramountcy of welfare, Hedley J emphasized that the court must still “carefully… scrutinise” applications to “police” public policy matters. He suggested that controls on commercial surrogacy are better implemented “at the border” rather than through the court process after a child is already born.

Conclusion

In re L solidifies the legal precedent that the lifelong welfare of the child is the primary driver in surrogacy cases. It establishes that while the UK continues to discourage commercial surrogacy for policy reasons, the court’s priority under Section 54 is to ensure the child is not left in a legal vacuum. Hedley J concluded by reinforcing that cases with international elements should continue to be transferred to the High Court for specialized scrutiny.