In Re L (a minor), a senior family court judge made a parental order in favour of a British couple, enabling them to keep the child born in the United States to their chosen surrogate, a woman from Illinois, despite their having paid to the birth mother considerably more than the “reasonable expenses” permitted under British law.
It is thought that approximately 70 children are born to surrogate mothers each year in Britain but surrogacy arrangements here cannot be enforced by or against any of the parties involved and no more than reasonable expenses may be paid to the birth mother. The Surrogacy Arrangements Act 1985 was rushed through Parliament in the wake of the Kim Cotton case, when Britain’s most famous surrogate mother was paid £6,500 to bear a child for a Swedish couple under an arrangement brokered by an American agency.
Making the parental order in the High Court, Mr Justice Hedley said “it is clear to me that payments in excess of reasonable expenses were made in this case”. However, describing the concept of reasonable expenses as “somewhat opaque”, and pointing out that the welfare of the child was the court’s “paramount consideration”, he concluded that the balance between public policy considerations and welfare should be weighted heavily in favour of welfare.