An English couple who paid Indian women to have their babies can keep them and bring them up as their own 
ruled one of Britain’s top judges, Sir Nicholas Wall yesterday. Sir Nicholas, President of the Family Division said £3,000 paid to the two Indian surrogates, did not go beyond “reasonable expenses”.
The case is similar to a recent Irish one that also involved a couple travelling to India.
Surrogacy involves gestating a baby in another woman’s womb. Critics say that surrogacy is frequently exploitative, in that the surrogate mother is nearly always poorer than the commissioning parents, and that it also “splits” motherhood thereby creating possible identity issues for the child.
The children in this case have three mothers. The birth mother, the genetic mother who provided the eggs and the ‘social mother’ who will actually raise them.
The couple, identified only as Mr and Mrs A paid a total of £27,405 in medical and care costs including the £3,000 each to the two mothers after travelling to India because of a lack of surrogate mothers in the UK.
Mr A is the father of both children and the same anonymous egg donor was used in both cases, making the resulting children, a boy named only as X and a girl known as Y who were born within days of each other and are now just over a year old, biologically brother and sister.
Sir Nicholas said the legal question before him was whether the payments made to the surrogates “fall foul” of the Act and went beyond “reasonable expenses”.
He said the couple were acting “in good faith , with no attempt to defraud the authorities, and that the payments were not so disproportionate that the granting of parental orders would be an affront to public policy.”
He ruled that the payments “were not of such magnitude to overbear the wills of the surrogates”.
He added: “It is plainly in the interests of these two children that they should be brought up by Mr and Mrs A as their parents.”
Both children are living with Mr and Mrs A in the UK and the couple applied to the court for parental orders under the 2008 Human Fertilisation and Embryology Act.
Sir Nicholas said Mr A was 47 and had three children from a previous relationship who live with their mother. Mrs A is 41 and has two daughters from a previous marriage.
The couple paid all medical and other genuine expenses under a surrogacy agreement and both surrogate mums gave birth within days of each other. Mr and Mrs A took over the care of the children following the births, said the judge.
Sir Nicholas said both children were given British passports and allowed to leave India. He said Mr and Mrs A who gave evidence before him “struck me as entirely genuine and straightforward people.”
In Ireland, the Minister for Justice, Alan Shatter has said official guidelines on surrogacy are to be published later this month.
However, he was unable to say when long-promised legislation for the wider area of assisted human reproduction would be published, according to the Irish Times.
Mr Shatter said a “consultative process” has begun between officials in the various Government departments on the wider issue and he hoped progress would be made next year.
His remarks came as the Government has been under pressure to introduce surrogacy legislation after it emerged that the parents of one child were not recognised by the Circut Court as the child’s legal parents.
Under Irish law, the birth mother is recognised as the legal mother, and surrogacy arrangements are not recognised.
However Mr Shatter said that any such proposal would “take time”. He said the Government was at “an advanced stage” in preparing guidelines as to how surrogacy issues should be handled. Last month, Minister for Foreign Affairs Eamon Gilmore said that the Government was in the middle of looking at legislation on surrogacy.
In 2005, the CAHR recommended that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents. However, one of the members of the commission, Christine O’Rourke, expressed dissent about this recommendation, saying that “the risks of exploitation and commodifcation” accompanying surrogacy outweighed its benefits.
Ms O’Rourke, Advisory Counsel to the Attorney General at the time, expressing her dissent in the CAHR’s report, said that there was “a broad cultural consensus that a woman who has just given birth may be uniquely vulnerable and the removal of her baby against her will is repugnant, unless she poses a threat of immediate harm to the child”.
She added: “This social norm is reflected in Article 10(2) of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which obliges Contracting States to accord special protection to women who have just given birth.”
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a biological mother (that is a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the surrogate mother nor the genetic mother but who raises the child).
Austrian law seeks to ensure that medically assisted procreation takes place similarly to natural procreation, and that the basic principle of civil law, that it is always clear who the mother is, should be maintained by avoiding the possibility that two persons could claim to be the biological mother.
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.