Re JV

MRS JUSTICE THEIS: I am giving this ex tempore judgment to determine an application for a parental order made by Mr JV and Mr OV in relation to two children, AX and AY, who were both born in June 2013. They were born in the United States of America at a hospital in Santiago as a result of a surrogacy arrangement that was entered into between the applicant and the respondent surrogate mother, Miss R. She is an unmarried surrogate who is in a longstanding relationship with a Mr H, and has four children. This was her first surrogacy arrangement.

In relation to this application the court has to be satisfied of a number of matters. Firstly that the criteria under section 54 Human Fertilisation & Embryology Act 2008 (HFEA 2008) are met and, secondly, that AX and AY’s lifelong welfare needs will be met by the court making a parental order in accordance with section 1 Adoption and Children Act 2002 (ACA 2002). I will deal with the section 54 criteria first which I can take relatively shortly.

Firstly, the court has to be satisfied that AX and AY were carried by a woman who was other than one of the applicants and that the gametes of one of the applicants were used in the embryo transferred to the surrogate mother. There is a letter from Dr Guy Ringer dated 24 June 2014 which confirms not only that Ms R carried the children but also there is a biological connection between both the children and Mr OV. That was confirmed in a subsequent DNA test.

The second matter is the status of the applicants’ relationship. They have known each other for a number of years; they formalised their relationship by entering into a civil partnership in early 2009 and so meet that criteria.

The third matter is they should issue the application for a parental order within six months of the children’s birth. They did so, within about five months of their birth.

The fourth matter the court has to be satisfied about is that the children have their home with the applicants at the time when they made the application, in November 2013, and at the time when the court is considering making the order. The children were born earlier than expected, eight weeks early; the applicants arrived soon after their birth. It is quite clear that following their discharge from hospital, and even beforehand, they have been cared for and had their home with the applicants. Initially they were cared for by the applicants in America and then, since early September, they have had their home with them at the family home in southwest London. Consequently they were certainly in the care of and had their home with the applicants at the time the application was issued in November 2013 and have their home with them now. This criteria is met.

Turning to domicile, each of the applicants have a domicile of origin that is other than this jurisdiction. What the court has to be satisfied with for the purposes of section 54 is that at the time of the application and the making of the order at least one of the applicants must be domiciled in the United Kingdom.

The court had detailed statements from both of the applicants. I have also heard oral evidence from Mr OV. His domicile of origin was in France. He came over here through his work in 2002. He has remained here since then. He has purchased a property in this jurisdiction and his intention is to remain living here indefinitely for a number of different reasons. He told me in oral evidence this is particularly as he considers there is a more tolerant attitude in this jurisdiction in relation to dealing with somebody is his situation; living in a same sex relationship with children. He does not find the position the same in France, and said that he has no intention of returning back to live in France in the foreseeable future or on the happening of any event, for example his retirement.

What the court has to be satisfied with in relation to domicile of choice is that a domicile of choice can be acquired by a combination of residence and with an intention of permanent or indefinite residence. I am satisfied, for the reasons that I have just briefly set out, supported by the details in his statement and oral evidence that Mr OV has a domicile of choice in this jurisdiction and has formed the intention to remain living in this jurisdiction indefinitely. That has been supported by independent action taken by him, for example the purchase of the property, the selling of his assets in France to be able to reduce his mortgage here so that he has effectively cut his financial and other ties with France. In those circumstances I am satisfied that that criteria is met, he has discharged the burden on him to establish his domicile of choice.

The fifth criteria is both of the applicants have to be over the age of 18 years of age. I have seen documentary evidence to support the fact that Mr JV is 32 years and Mr OV is 49 years.

The sixth matter is the issue of consent. When the matter came before me for directions there was some doubt as to that issue, but in fact on the morning of that hearing the applicants had received information as to the location of Miss R, who had moved, and as a result a document has since been filed in form A101A dated 13 May 2014, which is duly notarised. This clearly sets out that the respondent surrogate mother is giving her consent to the making of a parental order and that that consent is given unconditionally and in full knowledge of what she has given consent to. I am, therefore, satisfied on the filing of that document that criteria is met.

The final criteria in section 54 concerns payments. The court has to consider whether any payments made other than for expenses reasonably incurred for any of the steps listed in s 54 (8). There appear to be a number of payments that have been made by the applicants. Initially there was a payment to the British Surrogacy Centre (BSC) for the sum of £5000 for management services; effectively to facilitate their introduction to the surrogate mother and the clinic run by Dr Guy Ringer in the United States.

The applicants became dissatisfied with the BSC and the service they were getting from them and so, following an unsuccessful first surrogacy arrangement, they made their arrangements direct with the clinic in America. As a result of the information the court has and the very helpful tables attached to the statements, it appears the payments that are other than for expenses reasonably incurred amount to about £19,284. The sum of £19,284 is made up mainly from monthly payments pursuant to the surrogacy arrangement by way of compensation to the surrogate mother and a modest figure of about £622 as compensation for the embryo transfer. The other amounts that Miss Troy has rightly taken me to are either for specified items of expenses and so are not caught by section 54(8) or for a monthly amount of general out of pocket expenses, which again I do not consider are caught by section 54(8) in the circumstances of this case.

So, when considering whether the court should authorise those payments that have been made by way of compensation of £19,284 the court has to consider a number of matters. Firstly, whether the amounts are so disproportionate to expenses reasonably incurred that they attract the attention of the court as either being too high or too low: too low that they exploit the surrogate mother or too high so that they overwhelm her wishes. There is no suggestion the sums put forward here are anything other than figures that are similar to other cases involving American surrogacy arrangements and so they do not attract the attention of the court as being too high or too low.

The other matter the court has to consider is whether the applicants have acted with good faith and whether they have sought in any way to get round the relevant authorities, either here or in the United States. There is absolutely no evidence to suggest that these applicants have done other than act entirely in good faith. They have sought the services of agencies that are available and openly operating in this jurisdiction (BSC) and with other agencies that are lawfully operating in the United States. They have taken the necessary steps in America to regularise their legal position there. There was a judgment of paternity in the US Court made prior to the birth of the children and they promptly made their application here for a parental order to regularise their legal status in this jurisdiction in relation to the children. I am satisfied that in the circumstances of this case the court should authorise the payments made other than for expenses reasonably incurred and because there is no suggestion that the applicants have acted other than in good faith.

Having met the criteria under s 54, I can turn relatively briefly to the issues in relation to welfare. The court is concerned with AX’s and AY’s lifelong welfare, having regard to the matters set out in section 1 of the Adoption and Children Act 2002. The court is enormously assisted in that task by the inquiries that have been undertaken by Toni Jolly, who has prepared an extremely full and thorough report. She went to visit the family and has conducted her own inquiries. She provides at paragraphs 27-33 of her report a detailed assessment of the welfare checklist and the matters that the court has to consider, which I fully agree with and endorse. She concludes at paragraph 34 with the assessments that AY and AX are contented, much loved and well cared for children and she considers that all of the criteria for the making of a parental order would appear to me to have been met.

It is quite clear that both AX’s and AY’s lifelong welfare needs can only be met if their legal relationship with the applicant is secured in a lifelong way, and that can only be done by this court making a parental order, which is the order I shall make.

For those very brief reasons I make the parental order in relation to both children.