In Re X And Another

2009 Fam. 71 Royal Courts of Justice, High Court of Justice, Family Division, 2008

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Nature of the Case

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Facts

Ps are an established and successful professional couple. They have explored different avenues to parenthood. They explored an overseas surrogacy arrangement in the Ukraine. The Ukrainian woman had had her own children and had been interested in being a surrogate. The terms agreed covered her expenses, compensated her for loss of earnings and would permit her to put down a deposit for the purchase of a flat in the place where she and her husband worked. She was implanted with embryos conceived with donor eggs (the donor being anonymous) and fertilized by the male applicant’s sperm. She conceived and gave birth to twins. Ukrainian law stated that: The woman who is carrying or has carried a child as a result of the placing in her of an embryo or sperm and eggs, and no other woman, is to be treated as the mother of the child…..This applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs. In English law, the Ukrainian woman (although biologically unrelated to the twins) is the legal mother of these children. The woman’s husband acquiesced to the surrogacy, and he is in English law the sole father (although again biologically unrelated) of these children. The male applicant is the biological father of these children and, had the Ukrainian woman been unmarried, that he would be entitled to be treated as the father of them. The guardian’s submission is that the Ukrainian woman and her husband are the exclusive legal parents of these children and the consent of both is required. Ps contend that only the consent of the surrogate mother is required. The Ukrainian husband’s consent was obtained. Under Ukrainian law, once the surrogate mother had given birth to the twins and delivered them to Ps, she and her husband were free of all obligation to the children. The children had no rights of residence in or citizenship of the Ukraine, and there was no obligation owed them by the state other than to accommodate them as an act of basic humanity in a state orphanage. Ps became the parents for all purposes under Ukrainian law and were registered as such on the birth certificate. The children were effectively legal orphans and, more seriously, stateless. The children under English domestic law (if the guardian’s analysis is correct) had no English parents or, at best, a putative father with no parental responsibility. Under the law of the United Kingdom not only did these children have no right of entry of their own to the United Kingdom, for the applicants could not confer nationality on them, but the applicants had no right to bring them in, or at best the male P may have obtained leave to do so as a putative father or relative. The children were marooned stateless and parentless whilst the applicants could neither remain in the Ukraine nor bring the children home. DNA tests proved that the male P was the biological father of both children, the children were given discretionary leave to enter “outside the rules” to afford the applicants the opportunity to regularize their status under English law, hence the application for the parental order.