Ms Natalie Gamble:

Yes. Essentially, whether it is pre-birth or post-birth, there is a checklist. It is a question of who is overseeing that and at what stage. With the proposed pathway Dr. Horsey was talking about it is regulated surrogacy organisations that must ensure these steps are taken and then they certify that has happened. That is what then enables the parents to be recognised as the legal parents from birth. With the current system and the system that will remain for international surrogacy cases, it is about a judge looking at the criteria set out in the legislation. Some of those criteria relate to the eligibility of the parents. They must have a genetic link, one of them must be domiciled in the UK, they must be aged over 18, etc. Another criterion is the surrogate must have given her full, free and unconditional consent more than six weeks after the birth. I deal with these applications every day and judges take that requirement for consent very seriously. They want to see surrogates participate in the process. They want to ensure documents are properly translated if English is not a surrogate's first language and that they are notarised, signed by the right person, etc. If there are any concerns about consent then that will be investigated very rigorously.

The court will then look at the payments. This is when the ethical exploitation stuff comes in because where the court is authorising payments of more than expenses, it will want a clear breakdown of the financial transactions that took place. It will be down to the penny and cover everything that was paid and what it was for. It will also want to understand the context around that, namely, who the surrogate is, whether there is any suggestion she is being exploited or taken advantage of, whether the parents have acted in good faith or whether there has been anything illegal or immoral. The court will inquire into all those issues and want to be satisfied about them.

Ultimately, if there are issues or problems or something that has happened that the court feels is not in the best possible way, which is very rare in my experience, but if there is a question about the ethics of it the court will then balance that public policy against the welfare of the child. It will do an exercise of measuring if this is such a serious breach of public policy it should withhold a parental order or is the child's welfare the paramount consideration and should it outweigh that? There has not been a case where a parental order has been refused so the compulsion of the judges to safeguard the welfare of the child is quite rightly very strong but that does not mean the ethical issues are just irrelevant. People will get a very hard time. They will have to produce a lot of evidence. There will be questions about what they have done, why and how and what happened and so on. It helps nudge people in the right direction. If I do legal advice meetings with parents at the beginning of a surrogacy journey I will tell them if they want to make the court process as straightforward as possible, they need to show they have taken care of their surrogate, asked about the screening, that they have a relationship with her, that they have ensured things were done properly and that no one is being taken advantage of. Thus, the way the court inquires into these issues actually has quite a positive effect in changing the environment in which people are conducting surrogacy internationally.