Balancing child welfare and public policy in surrogacy

Background

The case of YW & Anor v A & Anor [2024] EWHC 3548 (Fam) concerned a couple (“XW” and “YW”) who engaged a clinic in Georgia to assist them in a gestational surrogacy arrangement. “P”, a girl, was conceived from YW’s gametes and an egg from a donor.

The couple arrived in Georgia shortly after P’s birth in July 2023. From August 2023, YW had returned to the UK, so, since that point, P had been in the care of one of the intended parents (XW). Due to delays in P’s passport being issued, XW and P did not arrive in England until 26 January 2024. 

On 12 August 2023, the couple made an application for a parental order for P, and proper notice of the application was given to the surrogate.  

In January 2024, YW was convicted for fraud and imprisoned for two years and eight months. Shortly thereafter, the child’s Guardian filed a risk assessment which set out her concerns about YW’s criminal history, and a referral was also made to the local authority who subsequently made safeguarding enquiries. 

In February 2024, the surrogacy agency contacted the surrogate. She again stated that she had no desire to be involved with the applicants, saying she had fulfilled her contractual obligations according to Georgian law and she did not wish to have any further involvement in the matter.  

In June 2024, the couple had another child, a little boy (“Q”), not via surrogacy. Q is P’s full biological sibling. 

YW was released in September 2024, but this was subject to licence conditions which would expire on 16 September 2026.  

The matter was listed for a final hearing on 29 October 2024.  

Issues  

For the judge to grant the parental order, three issues that had to be determined at the final hearing:  

1. Whether Section 54(4)(a) of the Human Fertilisation and Embryology Act (HFEA) 2008 was met i.e. Was P’s home with XW and YW at the time of the application and making of the order? 

2. Whether Section 54(6) of the HFEA 2009 was met i.e. Had the surrogate freely, and with full understanding of what was involved, agreed unconditionally to the making of the order?  

3. Did welfare and public policy issues (YW conviction and imprisonment) go against the making of a parental order?  

Issue one: was P’s home with XW and YW at the time of the application and making of the order? 

The court was satisfied that P had her home with XW when the application was made. However, the issue was that P did not live with YW from 3 August 2023 up until he was released from prison in September 2024.  

The judge determined that the courts must look at the facts of each case and the purpose behind the words of the legislation when deciding the issue. He also determined that the meaning of “home” should be interpreted broadly using the language from Article 8 of the European Convention of Human Rights.   

The judge was satisfied that the circumstances of the case which included i) P having regular contact by telephone and Facetime with YW ii) YW having regular contact with P, including direct contact in prison, during his imprisonment, and iii) YW returning to the family home where XW was living with P.  

Issue two: had the surrogate freely, and with full understanding of what was involved, agreed unconditionally to the making of the order?  

There was no issue over the surrogate’s initial consent in 2023. It was whether following YW’s conviction and imprisonment, her position remained the same.  

The judge was satisfied that the surrogate was made aware of the circumstances by the surrogacy agency in February 2024, and she again reiterated her consent to relinquish her parental rights. 

Issue three: did welfare and public policy issues (YW conviction and imprisonment) go against the making of a parental order?  

While the criteria in Section 54 had been met, before the judge could proceed with making the order he had to be satisfied that making the order would be in P’s welfare from a lifelong perspective. This was a complex exercise in this case because YW had 47 convictions and committed 81 separate offences between March 1998 and January 2024. The offences included two relating to violence and 43 offences relating to dishonesty (such as theft and burglary). It was recognised that YW’s criminal history was a clear risk to P’s emotional wellbeing should he offend again. 

Further checks also revealed that there had been previous public law proceedings concerning YW’s older children. The court documents revealed that: 

• YW was domestically abusive to the mother of YW’s older children.  

• Both YW and the mother of his older children had both used drugs and suffered from mental health issues, with YW being admitted to hospital for treatment for the latter.  

• YW accepted he could not care for the children, and they were placed with maternal relatives pursuant to a special guardianship order. 

Again, this disclosure was a real cause for concern for the court when assessing whether making a parental order was in P’s best interests.  

The judge heard from YW who said he had changed and sought mental health support for his problems. His previous probation officer supported this, adding that XW’s support had been instrumental. In her final report, the children’s Guardian recommended the making of a parental order. Her assessment was that XW is a protective parent and YW very much wanted to be a safe parent. She was satisfied that YW had abstained from taking drugs and there had never been any domestic abuse in the relationship with XW. Overall, she found that YW was committed to working with professionals and accessing support.  

The judge was satisfied that there were no welfare or public policy issues, and he made the parental order. His approach was to stand back and look at all matters in the round. He was satisfied that to decline to make a parental order would represent a serious and disproportionate interference with the rights of P, XW, YW and Q under Article 8 of the European Convention of Human Rights. Furthermore, if the order was not made, P would have a completely different legal status to that of her biological brother, and the surrogate would remain a parent despite making plain that she wants no involvement in P’s life, which was unlikely to be in P’s best interests. 

Commentary 

The facts of this case are unique. Until this judgement, there have been very few reported cases where one of the intended parents has been convicted and imprisoned.  

The court has a duty to scrutinise applications to police matters of public policy. The decision reached in this case shows how the English courts must grapple with that duty and the interests of the child involved.  

The outcome of this case may be surprising to some, but it serves as a reminder that “public policy” is not synonymous with “public opinion”. This case demonstrates that where the statutory criteria and welfare considerations are otherwise met, and the court carries out a holistic assessment (looking at the impact of any decision on the welfare of the child alongside Article 8 human rights), parental orders should be made.  

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