Relevant background
5.Y met Z when he went to work in Thailand. They entered into a civil partnership on 15 July 2013 and converted this to a marriage on 30 December 2019. They wished to have a family of their own through surrogacy and began making enquiries about this in 2017, initially in the UK but due to the delays they were informed would occur here they decided to look abroad. In their initial statement they state ‘There exists an incredible number of agencies online who all claim to undertake surrogacy in various countries regardless of the intended parents sexual orientation and despite the laws that may exist within a country. We naively thought some of these were acceptable options’.6.They initially entered into an arrangement organised by an agent in Thailand, with an egg donor based in Cambodia and the embryo transfer with a Thai surrogate taking place in Cambodia. The resulting pregnancy was lost at six weeks. The agent suggested moving the embryos to Kenya which the applicants did not support and they no longer continued working with that agent.7.The applicants were put in contact with another agent who had set up Global Star Consultancy, based in India but works with agencies around the world. This agent suggested Georgia. The applicants describe in their statements that they did not appreciate any problems there, they were aware other same sex couples had been there, had not encountered any issues and understood it was being approached from the perspective of what they describe as ‘hidden acceptance’. Following their own researches they were aware surrogacy was permitted in Georgia, however it was not an option as a same sex couple although there was no requirement to prove that you were married. They understood a number of same sex couples had undertaken surrogacy arrangements there, they describe in their first statement they were aware of the difficulties but were driven by an ‘overwhelming desire to be parents’. Later in their statement stating ‘We had researched the US but the cost was out of our reach and Canada had a long waiting list and was also expensive. We knew our only option of ever being parents was to undertake surrogacy in a country where we were possibly not following all of the regulations. Georgia seemed like the safest option…’.8.The initial agreement they signed with the agency was for $30,000 and involved transporting their embryos from Cambodia to Georgia. Following two unsuccessful embryo transfers to a surrogate in Georgia the agency informed them that further IVF was required to create better quality embryos. Due to the increasing costs the agency also suggested they changed to the Guaranteed Pregnancy Programme which cost $40,000, which they did in July 2019. Through the agency the applicants selected a new surrogate, V, and two embryos were transferred to her in November 2019 and a twin pregnancy confirmed. Due to Covid restrictions the applicants did not travel to Georgia to meet V and attend scans, as they had planned. 9.The applicants state they had been informed by the agency prior to the embryo transfer that V was single, had one child and had undertaken a previous surrogacy. The applicants subsequently found out, after the children were born that V married on 6 June 2019 and was divorced on 17 February 2020.10.W and X were born premature and required neonatal intensive care. The applicants report that specialist care cost them an additional £20,000, which they had to borrow. W and X were discharged from hospital in July 2020.11.Due to the Covid restrictions there were difficulties in Y travelling to Georgia. They report they were advised by the agency to say that Y’s girlfriend had given birth to the children to assist gaining entry, which they did. Having given a contradictory account to the British embassy and providing a correct account they were refused entry to Georgia.12.The applicants sought some specialist legal advice in this jurisdiction. As a result, Y was able to travel to Georgia and following Y having a two-week quarantine period collected the children from hospital, then age eight weeks. Y remained in Georgia with the children until October 2020, the children were issued with Georgian passports in September 2020. Z joined Y and the children in Germany in October 2020 and in November 2020 they all flew to Thailand.13.Whilst British passports were initially refused, following DNA test results British passports were issued for the children in December 2020.14.Y had contact with V when he was in Georgia. On 21 July 2020 V signed the document, which was notarised, consenting to this court making a parental order. On the same day the sum of $5,000 was paid to V by the applicants, Y recalls giving the money to their agent who paid V. This was for the signing of the birth certificate which the agreement detailed was not included in the initial financial package agreed to.15.In addition, V asked the applicants to pay $1,000 for her to complete relevant documentation to obtain Georgian passports in September 2020, which was paid by the applicants with an additional sum for $10 for travel expenses.16.During the discussions with the agency after the children’s birth the applicants set out they were informed for the first time that the agency had not registered V as a surrogate with the relevant authorities in Georgia.17.Since leaving Georgia the applicants have had no direct contact with V, either directly or via the agency. When they have sought to engage with the agency about serving these proceedings they had no response. Following Mr Spearman being instructed in June 2022 steps were taken to locate V on social media, as well as her husband. Contact was made with V via this route.18.A detailed translated letter dated 29 July 2022 was sent to V on 5 August 2022 from Mr Spearman informing V of these proceedings, the hearing date and setting out the legal implications if a parental order was made. V was asked to sign the C52. V received the letter and in her response raised concerns about endangerment to her and her family if she provided any further details regarding her husband. V states her husband was unaware of the surrogacy arrangement and they had separated at the time of the embryo transfer.19.At the direction of the court, further enquiries were made with the surrogacy agency regarding the circumstances of the sum of $5,000 being paid on the same day as the consent was signed. The response from Ms B from the agency is that payment accorded with the surrogacy arrangement as being a payment for birth registration. On the same day, following the instructions from the agency, V and Y registered the children’s births and they signed a power of attorney document which enabled the children to leave Georgia. 20.Due to delays in the application for the children’s British passports the applicants decided to obtain Georgian passports for the children to enable them to travel. That was done in September 2020 with the assistance of V and the agency.21.The parental order applications were made in December 2021, directions were made on paper and hearings took place on 29 March 2022, 4 May 2022 and 29 September 2022.22.V has been notified of these proceedings, although she has not signed and returned the C52 Acknowledgement of Service. In email exchanges between V and the applicants’ solicitor V has refused to do so without a further payment to her. V has clearly had notice of the proceedings and is aware of the hearing. In those circumstances, I do not consider there should be any further delay to await completion and return of the C52.