## Facts

- A British married couple arranged a gestational surrogacy in Ukraine after years of unsuccessful attempts to become parents.
- Twins were conceived using the intended father’s sperm and an anonymous egg donor; a married Ukrainian woman carried and delivered the children.
- Under Ukrainian law, the intended parents were registered as the legal parents and the surrogate and her husband relinquished parental status.
- The couple paid amounts including monthly payments during pregnancy and a substantial lump sum on live birth, exceeding what English law would typically treat as “reasonable expenses.”
- When the couple sought to bring the twins to the United Kingdom, English parentage rules treated the surrogate as the legal mother and, because she was married, her husband as the legal father, creating a mismatch with Ukrainian parentage determinations.
- The children did not acquire Ukrainian citizenship and lacked secure UK status, resulting in practical statelessness and the absence of workable legal parentage.
- After DNA testing confirmed the intended father’s genetic link, immigration authorities permitted the children to enter the UK outside the normal rules while the couple pursued family-law relief.
- The couple applied to the High Court for a parental order under the Human Fertilisation and Embryology Act 1990.

## Issues

1. Whether the statutory conditions for a parental order under § 30 of the Human Fertilisation and Embryology Act 1990 were satisfied where the children were born through a foreign surrogacy arrangement.
2. Whether payments exceeding “expenses reasonably incurred” could be retrospectively authorized so as not to bar a parental order.
3. How the children’s welfare should be weighed against public-policy concerns about commercial surrogacy and cross-border surrogacy arrangements.

## Decision

- The High Court granted a parental order in favor of both applicants in respect of the twins.
- The court found that the statutory framework did not require automatic refusal of a parental order solely because foreign payments exceeded what English law would typically consider reasonable expenses.
- The court treated the payment restriction as permitting judicial authorization in appropriate cases, and concluded authorization was justified on these facts.
- The children’s welfare and the need for stable, coherent legal parentage with their day-to-day caregivers were decisive.

## Legal Principles

- Under the Human Fertilisation and Embryology Act 1990, the woman who gives birth is the legal mother, and if she is married her husband is treated as the legal father absent proof negating consent.
- A parental order functions to transfer legal parentage from the surrogate (and, where applicable, her spouse) to the intended parents when statutory criteria are met.
- Payments beyond “reasonable expenses” do not necessarily preclude a parental order; the court may authorize payments retrospectively, with careful scrutiny of purpose, context, and any indicia of exploitation or bad faith.
- In deciding whether to make a parental order, the child’s welfare is the paramount consideration, including the child’s need for secure and consistent legal status aligned with the child’s actual care arrangements.
- Public-policy disapproval of commercial surrogacy informs the court’s assessment but does not justify leaving children without secure legal parentage where an order is otherwise appropriate.

## Conclusion

The court granted a parental order despite substantial foreign surrogacy payments, holding that the statutory scheme permits authorization of payments and that the children’s welfare and need for stable legal parentage with the intended parents outweighed policy objections to commercial surrogacy in the circumstances.


In re X & Another (Children) (Parental Order: Foreign Surrogacy), [2008] EWHC 3030 (Fam.)