Baby J was born as a result of a surrogacy arrangement entered into by a couple with a surrogate in India. However, they did not know at the time of undergoing the procedure or when baby J was born that the surrogate was married and had been abandoned by her husband some years before. He neither knew nor consented to the surrogacy. In accordance with English law, the surrogate mother and her husband are classed as the child's legal parents even if they are not biologically connected to the child. Accordingly, the Home Office refused baby J entry clearance leaving baby J stranded in India for 2 years. The commissioning parents applied to the High Court for a parental order giving them the same rights which by law parents have for children in England. The application was made out of time yet the Judge still found that an order could be made as well as that the surrogate's husband was not J's father. The judge invited the Home Office to reconsider the decision in light of her findings. This case illustrates how important it is for commissioning parents to seek expert legal advice at the very outset and consider the immigration implications of overseas surrogacy.
KB and RJ v RT  BK, (indefinite leave to remain in UK) and his wife RJ, (naturalised British citizen) applied for a parental order in respect of J. J was born to gestational surrogate RT in India. Paternity testing confirmed BK was the biological father. Neither BK nor RJ knew that RT was married at the time of treatment and birth. Her husband had abandoned her some years before. BK and RJ's application for child settlement visa was refused. J remained stranded in India for two years. The Judge considered each criterion for making a parental order and finding it met. She gave consideration to whether the surrogate's husband should be treated as the father of J under s 35 of HFEA 2008 and concluded he should not be. She invited the Home Office to reconsider the immigration application.