F, Re
[2024] EWHC 2849 (Fam)
R & Anor v A (by her litigation friend, The Official Solicitor) & Anor
27 November 2024
[2024] EWFC 341
Family Court
A couple had a baby through a surrogate who got very sick afterward. The surrogate couldn't make decisions. The court decided that it was best for the baby to live with the genetic parents, so it gave them legal parental rights.
Key Facts
- •Mr. and Mrs. R applied for a parental order for baby O, born via surrogacy with Ms. A.
- •Ms. A suffered a hypoxic brain injury after a cardiac arrest during childbirth, resulting in cognitive impairment.
- •Mr. and Mrs. R are O's genetic parents.
- •Ms. A had acted as a surrogate on previous occasions.
- •Mr. and Mrs. R paid Ms. A £15,000 in expenses.
- •O was made a ward of court, then an interim child arrangements order was made in favor of Mr. and Mrs. R.
- •Ms. A lacked capacity and was represented by the Official Solicitor.
- •The Guardian supported the application for a parental order.
- •The Official Solicitor adopted a pragmatic approach.
Legal Principles
Parental orders are governed by s54 HFEA 2008, requiring agreement from the surrogate mother unless she is incapable of giving agreement (s54(7)).
Human Fertilisation and Embryology Act 2008
The child's welfare is paramount (s1 Adoption and Children Act 2002).
Adoption and Children Act 2002
The court must consider the surrogate's capacity to agree, which is a question of fact, broader than the Mental Capacity Act 2005 definition.
Judge's interpretation of HFEA 2008
Relevant case law: Re D and L (Surrogacy) [2012] EWHC 2631 (Fam) and Re QR (Parental Order: Dispensing with Consent: Proportionality) [2023] EWHC 3196 (Fam), regarding dispensing with consent.
Case Law
Section 54(8) HFEA 2008 deals with the authorization of payments related to surrogacy arrangements.
Human Fertilisation and Embryology Act 2008
Outcomes
Parental order granted to Mr. and Mrs. R.
All criteria under s54 HFEA 2008 were met. The court found Ms. A incapable of giving agreement due to her cognitive impairment. O's welfare was paramount, and a stable home with his genetic parents was deemed best.