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Wednesday, March 18, 2015

Twins born to surrogacy in Ukraine

A High Court Judge has granted parental orders to a couple who commissioned the birth of twins in Ukraine.

In RS v T, the couple concerned had been married for 38 years and were both in their 60s. More than 20 years previously the woman had undergone IVF treatment in an attempt to have a child but this was unsuccessful and the couple decided to explore surrogacy as an alternative.

But it was not until 2012 that they decided to proceed with surrogacy and entered an arrangement with a commercial clinic in Ukraine, paying a fee of EUR 26,000 (£18,520) plus a supplement of EUR 5000 (£3,562)when the surrogate mother became pregnant with twins.

The current period of civil unrest in Ukraine began around the time the twins were born and the couple were therefore stranded in the country for several months.

While still in Ukraine, the couple asked the surrogate mother to signdeclarations stating that she agreed to the children being brought to the UK and to giving up her parental rights.

The commissioning couple have now returned to the UK with the twins. In February they applied for the parental order, transferring to them the status of parents to the twins. Under English law, the birth mother of surrogate children is their legal mother unless and until this status is transferred by the courts.

However, the couple ran into difficulties demonstrating the amount of money which had been paid to the surrogate mother, and were also unable to contact her in order to serve her with notice of the proceedings.

In the Family Court sitting at Canterbury, Mrs Justice Theis explained:
“The applicants invite the court to dispense with the need for the respondent to be served, as they submit they have taken reasonable steps to try and locate her. The evidence demonstrates that the only other method left to seek to contact her would be by way of notification in the media to try and locate where she is.”

The Judge said the documents signed by the surrogate mother while the couple were still in Ukraine were not sufficiently detailed to demonstrate that the birth mother had fully consented under the relevant legislation. On the other hand, she also believed that the couple had taken all reasonable steps to find the mother and the Judge decided that it would not be sensible for the couple to purse the possibility of trying to contact the mother through the media given the “very sensitive subject” and the unrest in the region.

Mrs Justice Theis authorised the payments made by the couple, saying the couple had “acted in good faith” and not sought to conceal the sums paid. Payments made to foreign clinics and surrogate mothers must be authorised by the family courts when granting parental orders because commercial surrogacy is illegal in the UK.

Noting that some of the difficulties encountered by the couple could have been avoided if they had taken specialist legal advice, she turned to the question of the couple’s age. They had no health concerns and a Cafcass officer had approved the granting of a parental order after interviewing them. However, the officer did stress the importance of the couple making arrangements for the children in the event that they became unable to care for them.

The Judge concluded that the twins’ welfare required “the position with their current carers to be secured in a way that provides lifelong security.”


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