Senior judge warns against unlawful surrogacies after women ‘exploited’

A senior judge has warned against unlawful surrogacy arrangements abroad after dealing with a “highly unusual” case involving two women in their 60s paying around £120,000 to start a family.

Sir Andrew McFarlane (pictured), president of the family division of the High Court, said in a ruling on Wednesday that the couple, and two Ukrainian women used as surrogates, were “being exploited for commercial gain”.

The couple, known as Ms W and Ms X, lived in the UK and had considered having children for several years, but were both in their 60s when they “in some way established a connection with a foreign surrogacy clinic”, which they believed was in southern Cyprus, the judge said.

But the clinic was instead located in the self-declared Turkish Republic of Northern Cyprus (TRNC), which is not recognised by the UK, and where neither surrogacy nor children being placed with same-sex couples is legal.

The couple paid around £120,000 for the procedures, which Sir Andrew said was “in reality, a commercial rate”, but following the births were unable to leave the TRNC with the children, with one of the women incorrectly registered as their birth mother and no paperwork provided by the clinic to state the children were born via surrogates.

The Home Office refused to allow the children to enter the UK with the couple, but leave to enter was given four years later after a legal battle.

After a hearing in July last year, Sir Andrew allowed the couple to adopt the two children, stating this was “very plainly” in their best interests, but also raised concerns about “the whole project that these two adults had embarked upon”.

He said: “I described the wisdom, in terms of the welfare of any children created by such an endeavour, as being highly questionable.

“I suspected, although I obviously did not know, that if they had their time again, Ms W and Ms X, knowing what they now knew, would not embark upon this particular course in order to bring children into their family.

“It was, however, absolutely clear that these children were being well cared for, were meeting their milestones, stimulated, happy and thoroughly embedded in every way, socially, emotionally, psychologically with their two parental figures and no doubt the wider family and the wider community within which they now lived.”

Sir Andrew said he released his anonymised judgment on Wednesday to “draw attention” to the case and “to offer some advice for those who may, in future, unwisely seek to follow the path taken by the two applicants”.

Lawyers for the Government had also raised “significant legal and public policy concerns” about the case, including around exploitation and immigration, which could lead it to oppose adoption orders being made in future.

Sir Andrew said that this could leave children in future cases “permanently stateless and legally parentless”, and added: “The fact that the court felt obliged to make adoption orders in the present case, should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made.”

He said: “The account of the circumstances surrounding the birth of these two children strongly suggests that all four women at the centre of the arrangements were being exploited for commercial gain by those running this unlawful operation.

“The motives of the two applicants in wanting to become parents of babies in their late 60s would seem to have been entirely self-centred, with no thought as to the long-term welfare of the resulting children.

“It was astonishing to learn, and have confirmed by their solicitor, that the applicants had not given any consideration to the impact on the children of having parents who are well over 60 years older than they are.

“It is likely that when they are in their early teens, these two young people will become carers for their 80-year-old adopted parents.

“The only sensible decision that the applicants made, as I observed during the hearing, was to commission the birth of two children so that, at least, these two full siblings will have each other as they grow up.”

Concluding his judgment, Sir Andrew said: “Put bluntly, anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again.”

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