February 26, 2024

British couple flouts surrogacy law, and keeps baby too

Judge believes rules on payments are “unclear”

A senior family court
judge permitted a British couple to keep their newborn child despite
their technically breaking the law by paying more than “reasonable
expenses” to the American biological mother. Mr Justice Hedley said the
current rules on payments were not clear, and that the welfare of the
baby must be the central consideration. He said that only in the
“clearest case” of surrogacy for profit would a couple be denied the
court order necessary to keep the baby. His comments are the first made
by a senior legal figure in recent years, and might be taken by many
infertile couples as a sign that they can now pay women to bear children
for them without the fear of legal penalty. On the other hand, the
decision is also likely to lead to calls for the law to be tightened up
to discourage “rent a womb” commercial surrogacy.

Mr Justice Hedley said
in the High Court on Wednesday, “It is clear to me that payments in
excess of reasonable expenses were made in this case.” The money paid to
the surrogate mother was also described as “compensation” rather than
expenses. The judge described the concept of reasonable expenses as
“somewhat opaque” and continued: “Welfare is no longer merely the
court’s first consideration, but becomes its paramount consideration.
The effect of that must be to weight the balance between public policy
considerations and welfare decisively in favour of welfare. It must
follow that it will only be in the clearest case of the abuse of public
policy that the court will be able to withhold a (parental) order if
otherwise welfare considerations support its making.”

He also warned that
the courts would continue to consider the amount of money paid in each
individual case, to ensure that a market does not emerge.
“Notwithstanding the paramountcy of welfare, the court should continue
carefully to scrutinise applications for authorisation (of payments)…
with a view to policing the public policy matters…and that it should
be known that that will be so,” he told the London Telegraph. Surrogacy
has been regulated in Britain since 1985. ~ London Telegraph,
Dec 8

Jared Yee