High Court judge approves commercial surrogacy

Pregnant woman
Image caption The judge spoke of his concerns over British couples who go abroad to have surrogate babies

A serving High Court judge has told the BBC that he is approving commercial surrogacy agreements made by British couples abroad.

Laws in the UK are designed to try to prevent such arrangements, but Mr Justice Hedley said his paramount concern was the welfare of the child.

The most recent case the judge approved was last month, involving a baby born to a surrogate in Ukraine.

The judge said he was "extremely anxious" about the current situation.

In Britain, the judge said, the only payment allowed to a surrogate mother was one of "reasonable expenses".

However, he has agreed to give retrospective approval for commercial surrogacy on at least four occasions.

"The statute does give power to the High Court retrospectively to authorise these payments and the reason we do so is not because we want to encourage commercial surrogacy but because of the impossible position which the child born as a result of the arrangement finds themselves in when they're back in this country," he told BBC Radio 4's The World at One.

Legal systems

Mr Justice Hedley, who specialises in family law, said it was important to highlight the issue because people were "getting into a mess unnecessarily".

Four weeks ago a judgement was handed down at the High Court about a baby known only by the initials IJ.

A British couple went to Ukraine and found a woman willing to become a surrogate mother.

Under the law in Ukraine the baby's parents are the British couple. Under the law in England and Wales the Ukrainian woman and her husband are the parents.

Stuck between two conflicting legal systems, the baby, in effect, became stateless and parentless and there were major difficulties trying to get the baby through immigration into Britain.

"I've done quite a lot of these commercial surrogacy cases and I've been extremely anxious at the difficulties people have got themselves into, usually through entering into them without beginning to appreciate the legal implications of doing so, and it just seemed important to say something about that," he said.

He said if his judgements meant that the will of Parliament was being subverted, then it was a matter for politicians to address.

"Commercial surrogacy is a highly controversial matter ethically and at the end of the day, by the time the case gets to me, the best I can do is focus on the welfare of the child," he said.

He warned anyone considering travelling abroad to enter into a surrogacy arrangement to prepare properly and to understand the legal implications.

"The most important thing is to ensure that you have really talked through the implications, preferably with people who have gone that way before you, but it is the immigration implications that are particularly important," he said.

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