A High Court
Judge has granted parental orders to a couple who commissioned the birth of
twins in Ukraine.
In RS v T, the
couple concerned had been married for 38 years and were both in their 60s. More
than 20 years previously the woman had undergone IVF treatment in an attempt to
have a child but this was unsuccessful and the couple decided to explore
surrogacy as an alternative.
But it was not
until 2012 that they decided to proceed with surrogacy and entered an
arrangement with a commercial clinic in Ukraine, paying a fee of EUR 26,000
(£18,520) plus a supplement of EUR 5000 (£3,562)when the surrogate mother
became pregnant with twins.
The current
period of civil unrest in Ukraine began around the time the twins were born and
the couple were therefore stranded in the country for several months.
While still in
Ukraine, the couple asked the surrogate mother to signdeclarations stating that
she agreed to the children being brought to the UK and to giving up her
parental rights.
The
commissioning couple have now returned to the UK with the twins. In February
they applied for the parental order, transferring to them the status of parents
to the twins. Under English law, the birth mother of surrogate children is
their legal mother unless and until this status is transferred by the courts.
However, the
couple ran into difficulties demonstrating the amount of money which had been
paid to the surrogate mother, and were also unable to contact her in order to
serve her with notice of the proceedings.
In the Family
Court sitting at Canterbury, Mrs Justice Theis explained:
“The applicants
invite the court to dispense with the need for the respondent to be served, as
they submit they have taken reasonable steps to try and locate her. The
evidence demonstrates that the only other method left to seek to contact her
would be by way of notification in the media to try and locate where she is.”
The Judge said
the documents signed by the surrogate mother while the couple were still in
Ukraine were not sufficiently detailed to demonstrate that the birth mother had
fully consented under the relevant legislation. On the other hand, she also
believed that the couple had taken all reasonable steps to find the mother and
the Judge decided that it would not be sensible for the couple to purse the
possibility of trying to contact the mother through the media given the “very
sensitive subject” and the unrest in the region.
Mrs Justice
Theis authorised the payments made by the couple, saying the couple had “acted
in good faith” and not sought to conceal the sums paid. Payments made to
foreign clinics and surrogate mothers must be authorised by the family courts
when granting parental orders because commercial surrogacy is illegal in the
UK.
Noting that some
of the difficulties encountered by the couple could have been avoided if they
had taken specialist legal advice, she turned to the question of the couple’s
age. They had no health concerns and a Cafcass officer had approved the
granting of a parental order after interviewing them. However, the officer did
stress the importance of the couple making arrangements for the children in the
event that they became unable to care for them.
The Judge
concluded that the twins’ welfare required “the position with their current
carers to be secured in a way that provides lifelong security.”
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