Fast-tracking international surrogacy: reforming the law for parental orders

Posted: 24/08/2017

The legal procedure for obtaining a parental order in England and Wales is complicated. It can be both confusing and expensive for applicants.

In Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90 Russell J said that international surrogacy cases “invariably involve some legal complexity”. As a result, all proceedings under section 54 of the Human Fertilisation and Embryology Act 2008 (s54 HFEA 2008) where the child was born outside of England and Wales are allocated to a High Court judge.

At the moment, applications for parental orders in international cases involve two hearings. The first is a directions hearing at which the judge timetables the filing of evidence, directs a parental order report and lists a final hearing. The second is the final hearing at which the order is made, usually without complication.

However, as surrogacy has increased in popularity, so has the number of relatively straightforward cases and the need for reform is clear. Not all international cases involve legal complexity, yet the stringent rules and processes continue to apply.

In these cases, it would seem eminently sensible if the two hearings could be condensed to one. This happened in a recent case, run by Penningtons Manches partner Simon Blain, instructing Andrew Powell of 4 Paper Buildings, where only one hearing was required.

There is great potential for these “fast track” or composite hearings to become the norm. A case may potentially be suitable for the “fast track” if:

• the surrogate (and her husband if applicable) consents to the application; 
• the applicants have met the s54 HFEA 2008 criteria with ease;
• the court, in the country in which the child was born, has afforded legal parentage to the applicants; and 
•  the parental order reporter is able to meet the applicants prior to the hearing.

Simon Blain comments: “When the court procedure for dealing with international surrogacy cases was first drawn up, these cases were regarded as rare and exotic and stringent procedures were put in place. As increasing numbers of prospective parents choose surrogacy, the process has become normalised. By using a reputable agency in the foreign country, and by consulting expert lawyers in the UK, it is possible to significantly reduce the length, and therefore the cost, of the proceedings. Of course, there will always be less straightforward cases where the full procedure will need to be followed.” 

Penningtons Manches’ specialist family and immigration lawyers are able to provide guidance on all aspects of international surrogacy. The team has also answered some frequently asked questions relating to surrogacy law and parental orders.

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