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Conjurers and children’s birthday parties

 

The decision of the President in Re X (a child) (surrogacy : Time limit) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html

 

This was a case where the commissioners of a surrogacy arrangement were late getting their application for a Parental Order before the Court.

 

That caused them to fall foul of

s54(3) of the Human Fertilisation and Embryology Act 2008

 

 

 

“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

Although it seems that there is very little mischief (and Parliament never said why they wanted a 6 month cut off date), the Courts have previously interpreted this pretty plain English provision in the ordinary plain English sense of the word – if you don’t get your application in before the Court before the child is 6 months old, you can’t have your order.  (Parliament did not give the Court a discretion here to perhaps allow an application with leave, or allow extenuating circumstances, or to permit the Court to make the order of its own motion notwithstanding that there was not a valid application)

It has been one of those bits of law that is just, if you are too late, tough luck.

 

That was, until the President got one of these cases. I have to say that everyone involved clearly worked hard to achieve a legal framework in which the Court could make a Parental Order, that clearly being a better order for the child involved than anything else that could be come up with.   (My personal view on it is that “must” is as clear as can be, and that whilst I support the aim to soften that into a judicial discretion, I think its going beyond the scope of the separation of powers. I would personally, have been happier with a Judge saying that in a case of this kind, the Act is incompatible with article 8 and that Parliament should look at the wording again to GIVE a discretion for exceptional circumstances)

 

That said, I think the way around it is clever, and there’s nobody better at making words behave as he tells them than the President.

 

This is the thrust of it.  Where Parliament uses a mandatory form of wording, but doesn’t set out what the consequences are if that mandatory form of wording isn’t followed, is there an implicit discretion?

 

 

  • The second strand in the argument put forward by Ms Isaacs and Mr Maynard is based on the long line of cases of which the decision of Lord Penzance, sitting as Dean of Arches, in Howard v Bodington (1877) 2 PD 203 is usually taken as the starting point. Lord Penzance said this (pages 210-211):

 

“The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end. Now the question is, to which category does the provision in question in this case belong?

… I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

 

  • Down the years a vast jurisprudence developed around the imperative / directory dichotomy. There is no purpose to be gained by entering into this morass, for the dichotomy has fallen into disfavour in recent years: see the historical analysis by Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, paras 15-22.
  • Lord Steyn identified what he called the core problem (para 14):

 

“A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.”

He concluded (para 23):

“Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead … the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.”

In applying that approach in the particular case Lord Steyn adopted (para 24) what he called “a purposive interpretation” of the statute in question.

 

 

That is not terribly simple stuff, even for law geeks, so I am grateful that the President gives a practical example

 

 

  • Lord Rodger of Earlsferry illustrated the point with a striking example (para 30):

 

” … if your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later. In the present cases Parliament has placed the court under a duty, where appropriate, to make a confiscation order before it sentences an offender. If the court fails to do so and proceeds to sentence the offender first, does Parliament intend that – like your daughter – the court should remain under a duty to make the order? Or does Parliament intend that the duty should be limited so that – like the conjuror – the court can perform it only before sentencing?”

So, is s54(3)’s “MUST apply for the order during the period of six months after the child is born”  like your daughter being in after eleven (in which case you would not be happy, but you’d still let her in the house i.e make the order)  or is it like the conjuror booked for a birthday party turning up a week late, in which case he doesn’t get paid (and you don’t hear the application?)

I’d still say that it was the latter. I don’t know why Parliament put a hard cap on the time limit, or what the mischief was, but if they had wanted to give a Judge a discretion to hear the application out of time, it would have been a really simple clause 54(3) (b) addition  “SAVE THAT a Court may grant leave for the application to be heard out of time if the Court considers it necessary to do so”.

As I’ve remarked before, if you are before the President and he finds a clever way of doing something, you should bet heavily on him doing it. I can’t recall a judgment where he says “It would be possible via very clever prestidigitation to do X, but I am not going to do X”

  • Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.
  • Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day’s delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor’s legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor’s office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child’s carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over “a protracted period”, but that is a different point.
  • I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that “the court may make an order … if … the [relevant] conditions are satisfied.” I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.
  • I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.

 

As I think I’ve conveyed, I’m no big fan of s54(3) and if Parliament were to amend it to add a clause (b) giving judicial discretion to allow an application out of time, I’d be delighted.

I’m not terribly delighted about a judicial decision that reads ambiguity and discretion into a perfectly unambiguous clause. The commissioning parents in this case did not make their application one day late. They realised too late that the statute applied and were already out of time (but “ignorance of the law is no excuse”)  and now the application is thirteen months out of time.

  • Having got thus far in the analysis, the remaining question is whether in the present case the commissioning parents are to be allowed to pursue an application made some two years and two months after X was born. In my judgment, they are.
  • This period in fact falls into two parts: first, the period from December 2011, when X was born, until July 2013, when Judge Hindley first drew attention to the significance of section 54; second, the period thereafter until the application was issued in February 2014. In the particular circumstances of this case, the latter period, in my judgment, properly falls out of account. Until Ms Isaacs suggested otherwise in January 2014, everyone – the parties’ legal advisers and the judges dealing with the case – were agreed that section 54(3) presented an insuperable obstacle. And that was hardly surprising given the decisions of Hedley J and Theis J referred to in paragraph 21 above. So the true focus must be on the period of thirteen months delay from June 2012, when the six month period expired, until the hearing before Judge Hindley in July 2013.
  • In one sense that is a long time, both in absolute terms and when compared with the statutory time limit of six months. And it is a very long time indeed compared with the matter of a few days that were fatal to the appellant in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156. But principle demands that I have regard to the statutory subject matter, the background, and the potential impact on the parties if I allow section 54(3) to bar the application. I repeat in this context what I have already said in paragraphs 54-56 above. There are, without labouring the point, three aspects of a parental order which very obviously and very fundamentally distinguish it from the kind of case which the court was concerned with in Adesina. The first is that a parental order goes not just status but to identity as a human being. The second is that the court is looking, indeed is required by statute to look, to a future stretching many, many decades into the future. The third is that the court is concerned not just with the impact on the applicant whose default in meeting the time limit is being scrutinised but also with the impact on the innocent child, whose welfare is the court’s paramount concern. In these circumstances the court is entitled, indeed in my judgment it is bound, to adopt a more liberal and relaxed approach than was appropriate in Adesina. After all, as Maurice Kay LJ recognised in Adesina, what the court is required to do, albeit it is required to do no more, is to secure compliance with the Convention. I would not be doing that if I were to deny the commissioning parents and X access to the court.
  • I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.

 

 

I would add this one to the ever growing pile of “Presedents”   -(phrase coined by Celtic Knot) and see these two blog posts by Lucy Reed http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/  and David Burrows http://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/

 

Of course our legal history is steeped in the tradition of Judges pushing language very hard to achieve an equitable outcome – I was probably the only person in my law class at college who thought that Lord Denning was in the wrong when he did this sort of thing. The President here has done the right thing for this family and this child, and I am probably being churlish in grumbling about it.  But I hope we are not setting a precedent that a Parliamentary use of “must” is really just a jumping off point for negotiations…

Overseas surrogacy

I have written a few pieces about overseas surrogacy this year , which probably reflects that more of these arrangements are being made, or at least that more of them are going wrong.

 

http://suesspiciousminds.com/2014/04/29/surrogacy-arrangements-made-overseas/

about  a commercial arrangement with the Kiran agency to have a surrogacy in India.  (I would urge some careful research before you pick your agency in India)

 

and

 

http://suesspiciousminds.com/2014/05/16/commercial-surrogacy-iowa-and-an-unforseen-difficulty/    about a tricky commercial surrogacy in Iowa, that went wrong because the Iowa procedure is that the commissioning ‘parents’ adopt the child, which breaches English law on arranging adoptions overseas.

 

and

http://suesspiciousminds.com/2014/07/02/yet-more-international-surrogacy/   about a commercial surrogacy in Georgia, where the Georgian organisation seemed incapable of answering a straight question about whether the surrogate mother was married.

 

There has been the obvious scandal this week about baby Gammy

 

http://www.bbc.co.uk/news/world-asia-28627374

 

The story here is that an Australian couple entered into a surrogacy arrangement with commercial elements in Thailand. The surrogate mother gave birth to twins, one of whom, Gammy, has Downs Syndrome. The story (though it is refuted) is that the Australian couple took the other twin but would not take Gammy. There are calls for commercial and overseas surrogacy to be better regulated.

I would not want to demonise surrogacy in the flurry of outrage about this particular case. It works for many people and provides a legitimate way of someone to concieve and care for a biological child if they are incapable of physically carrying a child of their own, for example.

 

So first, what IS surrogacy?

 

It involves having a woman become pregnant, carry the baby, give birth and then give the baby up. But most importantly, the persons to whom the baby is given to have provided either the sperm or the eggs, or both, to make the fertilisation possible. I.e one of the people who will be caring for the baby will be a genetic parent to that child.  If there isn’t a genetic link by the provision of either sperm or eggs, that isn’t surrogacy. That’s just straight out buying a baby.

 

In England, surrogacy is legal, although the commercial element is highly regulated. A person can’t pay for a baby, nor can the surrogate mother charge a fee. What is legitimate is a payment to cover legitimate and genuine expenses involved.

 

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

 

Anyone purporting to run a Surrogacy Agency in the UK, or to charge an introduction fee or arrangement fee fo surrogacy is doing so illegally.

 

The Human Fertilisation and Embryology Authority has some very good guidance about Surrogacy, here

http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html#8

 

Overseas, however, it is lawful in some countries to have an Agency to put prospective commissioners together with prospective surrogates, and to charge a fee for doing so. As happened here.

 

Here are the two major issues with Surrogacy for the ‘commissioning parents’, particularly where it is overseas

 

1.  If the biological / birth mother gives birth and then does not want to hand the child over, it is easy to get embroiled in difficult litigation over it. The existence of a ‘contract’ or ‘agreement’ to hand over the baby isn’t going to be determinative of it, things will depend very much on the law in that country and the mother’s ability to look after the child. It can be very protracted, confusing and expensive.

 

2. To ensure that both ‘commissioning parents’ have legal rights to the child in this country, an application to an English Court has to be made. That’s an application for a Parental Order.  Here is the really important bit. That application MUST be issued before the child is six months old.  If it is issued six months and one day after birth, it is too late. You can’t get your Parental Order. The Court has no power to cut you some slack or let you off. That six month cut off is a real deal. So you have to be organised.  Also, your application has to cover all of the necessary details – getting evidence that the Surrogate mother is not married, that she is the genuine mother of the child and that she genuinely consents is all vital. And for that, given that the Surrogate mother is overseas, you can be entirely dependent on the Surrogate Agency being good.  (they aren’t always)

 

One of the things the Court will have to do in the consideration of the Parental Order is look at the fees that you paid. This is a scrutiny to make sure that you paid a reasonable and fair amount, and importantly that it wasn’t such a high amount that it becomes ‘buying a baby’  – i.e that the sum offered is so much that the Surrogate mother is not simply doing this as a purely commercial enterprise. As a matter of public policy, the Government don’t want people buying and selling babies. And when it comes to ‘buying’ a baby from  a country that has substantial poverty and different standards of living that becomes even more sensitive.

 

Here are the guidelines for Courts when approving such payments (which remember is retrospective – after the money has been paid and the baby handed over)

 

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

 

It is worth noting that the sort of amounts sanctioned by English Courts this year have been approximately £20,000, which went to an Agency in India. (The Agency kept nearly all of that, with about £4,000 going to the Surrogate mother).

 

In England, £4,000 is not out of line with what one might pay a Surrogate Mother in terms of expenses, but £4,000 probably is a substantial amount more in India in terms of buying power.  How confident can we be that this is not exploitative, and essentially ‘buying’ a baby?

 

I’d certainly urge anyone contemplating surrogacy overseas to get their own legal advice, and probably to contact the HFEA for help and guidance. There are better places than others when considering overseas surrogacy, and certainly better agencies than others.

 

 

 

yet more international surrogacy

 

This time, Re D (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2121.html

 

This case was heard in the High Court, by Moylan J

 

 

  • This case provides a clear example of the difficulties created as a result of surrogacy arrangements being subject to varying degrees of domestic regulation, from significant regulation to none at all, and also because of the existence of significant differences in the effect of such domestic regulation. There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.

 

 

 

  • These proceedings concern a young boy called D who was born in 2010. He was born in the Republic of Georgia as a result of a commercial surrogacy arrangement, using eggs from a donor and the First Respondent’s sperm, which took place at and through a clinic in Georgia.

 

The particular wrinkle in this case was whether the surrogate mother was married at the time of this arrangement. Because if he was, under English law, he would be the child’s legal father, leaving the ‘commissioning father’ the genetic father, but having no legal rights about the child.

 

  • By virtue of section 35 of the HFEA 2008 the answer to the question, “Who is the legal father?”, depends on whether the surrogate mother was married at the relevant time. Section 35(1) provides:

 

 

“If – (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and;

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

Section 35(2) provides:

“This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).”

 

  • Section 48 of the HFEA 2008 provides that where, by virtue of the provisions of the Act, a person is to be treated as the mother, father or parent of a child,

 

 

“that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes”.

Section 48(2) provides the converse, namely that where, by virtue of the HFEA 2008, a person is not to be treated as a parent of the child,

“that person is to be treated in law as not being a parent of the child for any purpose”.

 

 

The surrogacy and insemination was managed through a clinic, whose director is named MK in this judgment. MK sadly gave two rather different accounts of the surrogate mother’s matrimonial status

 

 

  • When the mother and MK went to the British Embassy in Georgia on 5th January 2011 MK informed the consular official that:

 

 

“The surrogate mother is divorced and was divorced before she entered into the surrogacy arrangement. There are a further five surrogate mothers waiting to deliver their babies in February/March all destined for the UK.”

On 30th December 2011 MK sent an e-mail to the mother’s solicitors in which she said:

“As for surrogate mother, yes, she is and was legally married. She is married also now. We have holidays here until January 3rd and then I will send official letter to public registry and obtain the proof that the surrogate mother is and was legally married, also request copy of her marriage certificate.”

[On version 1 the 'commissioning man' who provided the gametes was the genetic father and legal father, on version 2 he was only the genetic father. You absolutely don't want any doubt about this issue, but the doubts just got worse]

In an e-mail dated 5th January 2012 MK said:

“Also one more important issue. Surrogate signed a contract with us claiming she was single. This was declared to the UK Embassy but very recently we became aware that the surrogate was married. I went to the UK Embassy with the mother to declare the surrogacy but I do not think this is problematic because some of our UK citizen surrogate mothers were married but UK law regulates this and none of our former potential parents has any problem because of this. You can check same in UK Embassy.”

On 20th February 2012 MK said that they had been unable to find the surrogate mother.

  • On 15th October 2012 MK said that the surrogate mother:

 

“Was either divorced or single. We do not match married surrogates to UK couple but we cannot provide any proof as we do not have any further link with her and only she can obtain proof of her marital status from public registry.”

The fact that only the surrogate mother could obtain proof of her marital status from the public registry was subsequently confirmed by the detective agency. In another e-mail of the same date, 15th October 2012, MK said:

“Paperwork was completed and D was granted papers to go to UK. At the time the surrogate mother has declared that she was single. We were later to be informed she had, indeed, been married.”

And then a bit later:

“I had a declaration (just my team member reminder) that surrogate mother was single when she signed and was given to the Embassy.”

In answer to the question as to whether she had any more information, MK said nothing more.

[I think that this Judge was very kind in not naming the agency or MK. Well, kind to them. Not so much to people who are wanting to enter into a surrogacy arrangement and might want to avoid complications, doubts and costly litigation down the line...]

Determination

  • Turning now to my determination, the evidence in this case, on the issue of whether the surrogate mother was married at the relevant time, is clearly not satisfactory. The only person able to give direct evidence is MK and she has refused to provide a statement. She has said, at different times, that the surrogate mother was single, married and divorced. I do not consider that any greater weight can be given to MK’s e-mail of 30th December 2011 than her other statements, which were either also provided to the mother’s solicitors or to the consular official at the British Embassy. These were, as I would describe them, equally official statements.

 

  • The mother’s evidence is inevitably unclear, based, as it is, on what she was told by MK or the impression she gained from MK.

 

  • In my view, the evidence does not establish that the surrogate mother was married at the relevant time. The evidence is not sufficient to enable me to come to that conclusion on the balance of probabilities. Indeed, in my view there is considerable doubt as to whether the clinic provided accurate details as to the identity of the surrogate mother. It is notable that the clinic has failed to provide its contract with the surrogate mother, although this may be explained by being unwilling to reveal the terms of that contract.

 

  • I propose, very briefly, to outline the orders agreed by the parties. In their position statements the parties were seeking different solutions. Those being addressed were adoption, special guardianship and shared residence. The mother sought either an adoption order or a special guardianship order. The father, in an extremely balanced statement, sought a shared residence order. The Local Authority supported the making of a special guardianship order. The guardian did not support the making of either an adoption order or a special guardianship order, having regard in particular to the effect those orders would have on the parties’ respective positions as parents. The guardian’s recommendation was that both parties should have parental responsibility and that there should be a shared residence order.

 

  • The parties, through sensible discussions, have agreed on a structure which follows that made by King J in the case of JP v LP & Ors [2014] EWHC 595 (Fam), including that D should remain a ward of court and that there should be a shared residence order. As I said at the beginning of this judgment, I am entirely satisfied that the proposed orders are in D’s best interests and, accordingly, at the request of the parties, I make such orders.

 

Commercial surrogacy, Iowa and an unforseen difficulty

 

The law reports today have had a distinctly American flavour, with this one being concerned with a commercial surrogacy arrangement between a French couple who moved to England, and a baby born in Iowa; and the next one up which is about Texans.

Re G and M 2014

http://www.familylaw.co.uk/articles/re-g-and-m-2014-ewhc-1561-fam

As the Court say, this is another case where a commercial surrogacy arrangement overseas throws up a complication, although this one would be wholly unexpected.

The French couple moved to the UK (relatively recently) but it was obviously a genuine move, them having bought a house, changed jobs, become contributors to the British tax system etc. They wanted a baby and provided their own genetic material to a surrogate mother in Iowa through an agency  (it will come to no surprise to regular readers that the sums of money that changed hands were authorised by the Court after the event)

The authorities in Iowa followed their processes to the letter, as did the French couple, and twins were born in due course. What the French people had not realised was that the last stage of the process in Iowa was effectively to make an adoption order for the twins in favour of this couple.

That’s a whole new ball game, because of this provision in the Adoption and Children Act 2002

The relevant parts of s 83(1) provides:

‘1) This section applies where a person who is habitually resident in the British Islands -

(b) At any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time.’

[6] The section then goes on to make various provisions including, importantly at s 83 (8), a person may be liable for a summary conviction in relation to contravention of that section. It sets out the maximum terms of summary conviction not exceeding six months, or a fine to the statutory maximum, or both

 

That section came about as a result of public policy issues, notably Mr and Mrs Kilshaw who ‘bought’ a baby on the internet when there was nothing preventing that sort of thing happening.  (One might suggest that commercial surrogacy is not all that different, but it is sufficiently different to make it legal – largely because the baby is created with genetic material from at least one of the people who will be caring for him/her)

 

This couple had not anticipated adopting this child, and had not, therefore, sought approval as adopters or to adopt from overseas. That put them in the position of having accidentally breached s83, and potentially liable for criminal charges.

[19] In reality the applicants had little option other than to undertake that legal process in Iowa. It was clearly in the children’s interests that they secured their legal position in the State of Iowa regarding both children. It also meant they fulfilled the terms of the surrogacy arrangement which required them to take all necessary steps to secure their legal relationship with the children, and to extinguish the respondent’s legal relationship and responsibilities regarding the children. It probably also assisted in them being able to secure the relevant immigration clearance to enable them to bring G and M to this jurisdiction, which they did very shortly thereafter, arriving back in this country on 21 April.

[20] However the difficulty with having undertaken those legal steps in Iowa, not only to comply with the terms of the agreement that they entered into, but also to secure the appropriate orders to ensure that M and G’s welfare needs were met whilst they were in that jurisdiction, the applicants left themselves open to potentially being in breach of s 83, namely bringing children into this jurisdiction without having gone through the required procedures having undertaken an adoption abroad.

[21] The applicants were clearly between a rock and a hard place. It is clear that from a welfare standpoint, and because of their obligations under the surrogacy agreement, the steps they took in the US were the right steps to take and were done with the best of intentions and with the children’s welfare uppermost in their minds. They had no idea that by undertaking those steps, they would potentially be in breach of s 83.

[22] It is important this issue is highlighted. Intended parents who are about to embark on similar arrangements in the US may wish to take advice in the early stages when they are selecting surrogate mothers and consider whether the State in which the child is going to be born requires the same process as was undertaken in Iowa, so they do not find themselves in breach of s 83. The difficulties that arose in this case where parties are following surrogacy arrangements and intending to come back to this jurisdiction to issue applications for parental orders need to be highlighted to the Department of Health so they can consider whether this situation was intended to be caught by the provisions of s 83 that result in a criminal offence.

[23] It is clearly an important issue to highlight but, as I shall come on to describe in a moment, in this case I am entirely satisfied the applicants undertook these steps because they felt that was the best way of securing their legal relationship with M and G in the State of Iowa. They were clearly following specialist legal advice as to what steps they should take. There is absolutely no suggestion in this case the applicants have done anything other than act in good faith and complied with all relevant authorities both in the US and here.

 

 

The Court went on to make the parental order sought by the couple

[53] Even if the requirements under s 54 are satisfied, the court has to go on to consider whether each child’s welfare needs will be met by the court making a parental order. Section 1 ACA 2002 sets out that the paramount consideration for the court is the lifelong welfare needs of each child, having regard to the welfare considerations set out in s 1(4).

[54] The court has been enormously assisted in this task by the report provided by John Power, the parental order reporter. His report is dated 31 January 2014 following his visit to the family home on 15 January of this year. He sets out in that detailed report his perceptive analysis of the welfare checklist between paras 40 – 47 which I wholly accept and endorse. He concludes his assessment with the following:

‘The applicants care for the children lovingly and have been proactive in ensuring that their needs are met. G and M demonstrate secure attachment to the intended parents. BB and BD are confident that AM entered into the surrogacy arrangement knowingly and willingly. They are confident that the amount paid was not such as to strongly influence or overpower the surrogate’s freewill in making the arrangement.

G and M’s permanent home will be with BB and BD. A parental order will benefit them greatly as it will secure G and M in law as the intended parents’ children, thus, affording them the greatest possible security. In the circumstances, I take the view that it is overwhelmingly in the interests of G and M for a parental order to be granted.’

[55] I am entirely satisfied that each child’s lifelong welfare needs can only be met by their legal relationship with the applicants being on the securest footing possible, and that can only be achieved by this court making a parental order.

 

 

Postscript – in a bizarre twist, another case CC V DD has just  been reported, with markedly similar issues  (French people adopting in England, surrogacy, Iowa, s83..  I had to read it twice to make sure it wasn’t the same judgment under a different name)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1307.html

 

 

Surrogacy arrangements made overseas

 

Re WT (A child) 2014

 

In a situation where a childless couple want a child, sometimes the search is cast very far and wide. At the early stage of the internet, there was outcry in Britain about the Kilshaws, a couple who purchased a baby on the internet from America. That led to the creation of legislation about overseas adoption and in turn surrogacy arrangements.

In this country, there are clear restrictions about surrogacy, and the amount that can be paid to a woman to have a baby on your behalf (it has to be expenses only) and as the High Court recently pointed out in JP v LP and Others 2014, there are criminal offences associated with any actions that are dealing with surrogacy on a commercial basis (even as an intermediary, or in that particular case as a solicitor charging for drawing up documents to make the arrangements as watertight as possible)

 

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

 

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

 

 

On a strict interpretation of that section, even doing the research about surrogacy and giving it to your client by way of advice can fall foul of that, if you then charge them for it s 2 (1) (c)   – it actually looks like not only is the solicitor committing an offence for charging, but the client also for asking them to do it and offering to pay for the advice…

[That might cause a problem with some of the guidance given by the High Court in this case that people contemplating overseas surrogacy should seek specialist advice first]

There are slightly more complicated provisions when the surrogacy is commissioned from a woman living in another country, and that is what Re WT is all about.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1303.html

 

In that case, two people sought through an agency – the Kiran infertility centre (which immediately  rang a not entirely positive-sounding bell with me… more later) to commission a woman in India to have a baby on their behalf.

 

The baby was conceived by using the male’s gametes artificially inseminating the woman in India (the use of gametes or an egg or embryo is from one of the commissioning couple what makes it surrogacy rather than an adoption that is paid for) . That woman is named SA in the judgment.

 

The couple paid the sum of $28.000 dollars to the Kiran infertility centre. The biological mother, SA, received 350,000 rupees   (the judgment never actually does the currency calculation, so I will. The woman received roughly $5,800 dollars, leaving the clinic with $22,200. )

 

The couple then made an application for a parental order in the UK, this being what would make them both legally the parents of this child.

 

As the Court carefully point out, such an application HAS to be made within 6 months of the child’s birth – the Court has no power to extend that time-limit. If it isn’t made in time, the Court can’t consider the application.

 

In order for the Court to make the parental order, one of the issues that they need to consider is the consent of the mother – that has to be given at a period after the first six weeks of the child’s life (as an insurance that the decision is not being made at an emotionally vulnerable time, when hormones are having a significant sway on emotions and decision-making)

 

The clinic were less than helpful in getting the evidence about the mother’s consent

The parental order application is dated 14 March 2013. I have dealt with the four directions hearings prior to the final hearing on 4 March 2014. The main concerns I had on the information that was available when the matter first came before me can be summarised as follows:

(1) all the documents signed by SA were in English, including importantly the consent Form A101A. There was no information available as to whether she spoke English, was literate or had had the documents read through and interpreted for her;

(2) the applicants had not met SA and were unable to provide any information about her first language or her level of literacy;

(3) the enquiries they made with the clinic to seek clarity about the circumstances in which SA signed these documents were not responded to by the Clinic in a helpful or constructive way;

(4) the attempts to locate SA at the address on the documents were unsuccessful as the address given by the clinic for her covered a very large area;

 

Because of these issues, the couple sustained considerable additional costs in obtaining better evidence about the mother’s consent, and the judgment is critical of the clinic

The Clinic in this case has not always been helpful in the way it has responded to reasonable requests made on behalf of the applicants, often such requests were following specific directions made by this Court. They were given the opportunity to make representations to this Court but have not done so. Delay was caused as the Clinic insisted on being sent hard copies of the letters requesting information and consent from the applicants to do so. The Clinic makes the fair point that it is not in their interests not to help their clients obtain parental orders. Some of the documents signed by SA appeared to be in a standard form and contained provisions that were not accurate, or were not completed. For example, the ‘Agreement for Surrogacy’ signed on 29 December 2011 contained a provision which stated ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and an appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’. The applicants said they had had no contact with SA in writing and were not aware of any agreement being filed with the Clinic prior to the Agreement for Surrogacy.

 

Eventually, the couple were able to provide the evidence that satisfied the Court that mother had given free and informed consent. The Court was also satisfied that the couple were able to offer the child a good and loving home and that making the parental order was the right thing to do.

 

The Court then looked at the payments – the Court has to retrospectively  authorise those payments under s54(8) when making the parental order.

As the judgment shows, the public policy reasons for this are strong – if the payment is too low, there is a risk that the mother is being exploited, if too high there is a risk that her decision has been swayed by financial considerations. It is also clear that the Court has jurisdiction to look at payments made to the foreign agency   (remember, if you were running a UK surrogacy agency, it would be illegal to charge money for ANY of your services)

Turning finally to the question of payments under s 54(8). Whilst the focus of the court’s consideration is on payments made directly or indirectly to the surrogate mother, it is clear from cases such as Re C [2013] EWHC 2408 (Fam), the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions require authorisation by the court, insofar as such payment cannot be considered to have been for expenses reasonably incurred.

The applicants have produced a part breakdown of the payments they made totalling almost $28,000. The breakdown given appears incomplete: $11,675 was paid when they registered with the clinic in May 2011 followed by 6 payments of $2,500 between March to October 2012. There are then some one off items listed as post birth administrative fees ($245), notary fee ($260), SA’s travel expenses ($350) and courier charges ($45). No other breakdown of how the sums paid to the Clinic is given, despite requests being made to the Clinic to do so. The Clinic’s unhelpful response to such a request is as follows ‘payments made to clinic for the entire surrogacy process are available with your clients’. If that was the case the request to the Clinic would not have been made.

The applicants had no direct dealing with SA. The only information they have regarding payments made to her are the documents signed by her that confirm she received 3,50,000 R’s. In a subsequent email from the clinic dated 3.1.14 they confirmed that SA was not required to pay the caretaker or Dr Sekhar out of the monies she received and SA in her meeting with the Ms Baria confirmed she received 3,50,000 Rs. This level of payment to the surrogate is the same as authorised in D & L [2012] EWHC 2631 (Fam) [2013] 1 WLR 3135 which concerned the same clinic.

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

I am entirely satisfied the applicants have acted at all times with good faith and without moral taint. They took great care to select the clinic they used, undertook extensive research and enquiries and also formed their own judgment when they visited the clinic. They have displayed independent judgment by not always following the advice of the Clinic, for example which FRRO to secure the exit permit from. There is no evidence to suggest they have been otherwise than honest and candid in all their dealings with the Indian and UK authorities and have complied with the directions of this court. The amounts paid to the Clinic were set by the Clinic in a jurisdiction where commercial surrogacy is not unlawful. The amount paid to SA was not negotiated by them, appears to have been fixed by the Clinic, is the same as a previously authorised payment approved by this Court and is not dissimilar from payments made in similar surrogacy arrangements in Indian clinics. There is no evidence to suggest SA did other than freely consent to the surrogacy arrangement.

In those circumstances the payments made other than for expenses reasonably incurred are authorised by the court

The Court are of course in a bit of a bind here, and that’s hinted at here. Where the Court think that the couple have behaved properly, but that the fees were too high, their only sanction is to refuse to retrospectively approve the payments. But the money has already been spent, so what good does that do? Ultimately, the Court have the power to not make the parental order if they feel that the couple have improperly “bought” the child, but in a case like this where one might feel that they have been ripped off, there’s nothing the Court is likely to be able to do for them.

 

[There's also, for me, a grey area as to whether when considering whether the payments are so grossly disproportionate that they shouldn't be allowed, as to whether the Court is looking solely at what the couple pay or what the biological mother receives, and compare that to the value of the money in both countries. It is possible, I don't know, that $5,800 is not a grossly disproportionate amount here, but in another country that sum of money might compare extremely favourable to annual income]

 

And you will see from the reference to D and L (Minors Surrogacy) 2012 that I was right to recall Kiran Infertility Clinic

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2631.html

 

In that one, the clinic didn’t get an address for the biological mother, causing huge problems in evidencing their consent. If you read my piece on that at the time,

 

http://suesspiciousminds.com/2012/10/01/be-my-be-my-baby/

 

you might remember this particularly telling feature

 

At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture

 

 

As I’m not charging anyone who reads this blog any money, I can give my advice about surrogacy without breaking the criminal law. My advice is, read these judgments and shop around before you decide which agency to use.

 

The Court go on to give some general advice to couples contemplating surrogacy with an overseas woman

 

As can be seen from what I have detailed above this application has not had an easy journey to the final hearing. Adopting the words of Hedley J in the first reported foreign surrogacy case heard over 5 years ago Re X&Y (ibid) paragraph 2 ‘..the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest.  The court shares their [the applicants] hope that their experiences may alert others to the difficulties inherent in this journey.’

Having dealt with a number of these cases, many of which involve unrepresented applicants, it may be helpful to highlight the areas that cause most difficulty in these cases:

(1) Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.

[As I commented at the outset, charging for such specialist advice is not as straightforward as one might hope]

(2) It is critical that an accurate documentary account of the various steps is kept by the commissioning parents so it can be available, if required, in support of a parental order application to assist in satisfying the relevant criteria under section 54. This is particularly relevant when considering any payments made and what, if any, are caught by the provisions of s 54(8). What is most helpful for the court is a schedule setting out the payments made and what they were for.

(3) A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period. The recent decision of Mrs Justice Eleanor King in JP v LP and Others [2014] EWHC 595 (Fam), although in the context of a domestic surrogacy, is a timely reminder of the legal complexities if such an application is not made in time. Parental orders change parental status permanently, extinguishing the parental status of the surrogate mother entirely (and her husband, if applicable). Such orders confer legal parenthood and parental responsibility on both applicants for such an order.

(4) The requirement for the surrogate mother (and her husband if she is married) to give consent freely, unconditionally and with full understanding of what is involved is a fundamental part of the s 54 criteria. Depending on the circumstances the commissioning parents may need to consider meeting the legal fees for the surrogate mother, limited to taking advice on the consequences of a parental order being made. The cost of such advice is likely to be considered an expense reasonably incurred. In addition, it is clearly essential there is evidence to demonstrate (if required in the circumstances of the case) that any document signed by the surrogate mother is understood by her and, if necessary, translated into her first language before she signs it. Again, any costs incurred for this are likely to be considered an expense reasonably incurred.

(5) In this case the applicants were not able to meet the surrogate mother which in the Court’s experience is relatively unusual. If they had met her they may have been able to provide helpful information to the Court. In the event commissioning parents are not able to meet the surrogate mother they should seek to establish clear lines of communication with the surrogate mother, and ensure she is made aware during the pregnancy that she will need to give consent at least six week after the birth.

 

I wish this couple the very best of luck with their child, and it is a shame that so much additional cost and stress was caused to them in this process. They chose their UK lawyers very wisely in this case, in my humble opinion, and were in the best possible hands.

surrogacy – be warned, charging to draw up an agreement is a crime

 

Re JP v LP and Others 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/595.html

in which the High Court deal with a surrogacy arrangement that went wrong. As I’ve suggested in the past how important it is, if you are creating a baby in a slightly unorthodox way that all adults involved are clear about what they all intend, and ideally get it down in writing.

In this case, the adults HAD done that, and had a surrogacy arrangement reduced into a legal document intended to be binding. Mrs Justice King points out that in charging for that document to be drawn up, the solicitor was committing a criminal offence.

    1. The parties agreed and an agreement was prepared by a firm of Birmingham solicitors. The solicitors were in fact committing a criminal offence as, whilst such agreements can lawfully be drawn up free of charge, the solicitors in preparing and charging for the preparation of the agreement were negotiating surrogacy arrangements on a commercial basis‘ in contravention of section 2 of the Surrogacy Arrangements Act 1985 which says :

 

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

(2) A person who contravenes subsection (1) above is guilty of an offence;

Worse than that (for the adults, not the solicitor) was the fact that under s36(1) Surrogacy Arrangements Act 1985 surrogacy arrangements are not enforceable by law. So a document was drawn up and charged for that had no legal status, and the solicitor doing it was unwittingly committing a crime.

So, lesson number one is that if you are a solicitor and someone seeks advice about a surrogacy agreement, you’re either doing it pro-bono or you’re potentially committing a crime.  And if you are doing it pro-bono, then the document is only really going to be any use as a statement of people’s intentions BEFORE the birth. Once the baby is born, all bets are off.  The fact that a biological mother agrees to have a baby and hand it over and puts that in writing doesn’t mean that she can’t when the baby is born just say “Sorry, changed my mind, I’m keeping the baby – and the ‘expenses’ that you gave me”

    1. Notwithstanding that a surrogacy arrangement may have taken place outside the structure of the HFEA 2008, The act itself nevertheless spells out the legal effect of such an informal arrangement:

 

(i) The surrogate mother having carried a child following assisted reproduction ‘and no other woman’, is the child’s legal mother s33(1) HFEA 2008. This remains the case unless the child is subsequently adopted or parenthood transferred through a parental order. Absent adoption or a parental order she has and retains parental responsibility.

(ii) The father is the genetic and social father of CP

The surrogate mother was not married section 35 HFEA 2008) and was neither treated in a UK Licensed clinic, she was not in the category of relationship which would satisfy the so called ‘Fathership’ conditions’ (s37 HFEA 2008) which relationships could otherwise have the effect of making the husband/partner of the surrogate mother the legal father in place of the genetic father.

(iii) The mother, absent legal intervention, has no status other than the emotional and social status of being CP’s psychological mother. Crucially she does not have parental responsibility, she cannot therefore give consent to medical treatment, register CP for a school or take a myriad of decisions in relation to CP which parents routinely do without a thought as to whether or not they have the authority so to do.

Be my, be my baby

A discussion of the law on surrogacy, and the case of D and L (Surrogacy) 2012 EWHC 2631 Fam

A lot of new caselaw this week, and this one is a little off the beaten track. It involves the issue of surrogacy, which is something at the moment I’m interested in, as there’s a pending case of public interest  (reporting restrictions, upcoming criminal trial, can’t say anything more, sorry)

The case can be found here:-

http://www.familylawweek.co.uk/site.aspx?i=ed101209

The facts of the case are relatively straightforward  – a couple decided that they wanted to have a child and being a same-sex couple the traditional route wasn’t open to them. They entered into dialogue with an agency the Kiran clinic from Hydrabad, who found them a woman who was prepared to become a surrogate. That woman was from India.  A contract was signed. Twin babies were born and the couple were provided with those babies and returned to the UK with them.

In order to then obtain parental orders in the UK, they sought the mother’s consent to the making of such orders.

Because the UK provisions are that a consent given less than six weeks after the child is born is not valid  (in order to give a mother who has hormonal feelings of bonding and attachment or hormonal surges post-birth generally time to settle on her true feelings), the contract was not sufficient to demonstrate the mother’s consent.

The couple asked the agency to assist with this, and found them to be somewhat lacking in their willingness to assist.

11. At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture.

Yes, you did read that correctly.  I really hope that the single sheet of paper found its way into the court bundle.  (And I can’t help speculating what it was – my gut feeling is a v-sign, or the bird , but was it a sketch or a photograph?)

The couple had not wanted to contact the birth mother directly, wanting to respect her privacy, but had to instruct an enquiry agent, whose search was fruitless.

“I am sorry to inform you that I could not locate Miss B. The address provided by the clinic where Miss B should be residing…is not the place where she lives. Property is currently empty but is former residence of [the caretaker/arranger]. His old clinic is on ground floor. Nobody there had any knowledge of Miss B or where she is living now. I have shown neighbours [identity] card of Miss B and they did not recognise her. I could not find out where she lives now and so could not get her to sign the forms.”

It seemed very likely that the address that the couple had been provided with by the agency was not accurate (although one has no way of knowing whether this was of the agency’s making, or whether they themselves had been misinformed)

[By the way, ‘misinformed’  takes me on a tangent to one of my favourite exchanges in cinema, from Casablanca.

Rick: My health. I came to Casablanca for the waters.

Captain Renault: The waters? What waters? We're in the desert.

Rick: I was misinformed     ]

As is often the way in the High Court, you get a nice pithy summary of the law, which is always a great starting point if you need to research the issue.

17. Before turning to the detailed provisions of section 54 of the 2008 Act, I remind myself of the important change to the law affected by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010. Regulation 2 provides:

“The provisions of the 2002 Act [that is to say, the Adoption and Children Act 2002] set out in column 1 of Schedule 1 have effect in relation to parental orders made in England and Wales and applications for such orders as they have effect in relation to adoption orders and applications for such orders, subject to the modifications set out in column 2 of that Schedule.”

The effect of this provision is, inter alia, that section 1 of the 2002 Act applies to the making of parental orders in the following terms:

“(1) This section applies whenever a court is coming to a decision relating to the making of a parental order in relation to a child.
(2) The paramount consideration of the court must be the child’s welfare, throughout his life.
(3) The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(6)   The Court must always consider the whole range of powers available to it in the child’s case (whether under section 54 of the Human Fertilisation and Embryology Act 2008, the Adoption and Children Act 2002 as applied by regulation 2 of and Schedule 1.2 The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 or the Children Act 1989) and the Court must not make an order under that section or under the 2002 Act so applied unless it considers that making the order would be better for the child than not doing so.

(7)  In this section, ‘coming to a decision relating to the making of a parental order in relation to a child’ the relation to a court includes

a)  coming to a decision in any proceedings where the orders that might be made by the court include a parental order (or the revocation of such an order) and 

b)  coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an individual under this Act but does not include coming to a decision about granting leaving in any other circumstances.

(8)  For the purposes of this section, 

a)  references to relationships are not confined to legal relationships,
b)  references to a relative, in relation to a child, include the child’s mother and father.”

19.  Those principles, in particular the paramountcy principle set out in subsection (2) and the checklist set out in subsection (4,) guide the court in exercising its powers to make parental orders under section 54 of the 2008 Act, which reads as follows:

“(1) On an application made by two people (‘the Applicants’) the court may make an order providing for a child to be treated in law as the child of the Applicants if

a) the child has been carried by a woman who is not one of the Applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

b) the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and

c) the conditions in subsection (2) (8) are satisfied.

(2) The Applicants must be

a) husband and wife,
b) civil partners of each other, or
c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the Applicants must apply for the order during the period of six months beginning with the day in which the child is born.

(4) At the time of the application and the making of the order

a) the child’s home must be with the Applicants and
b) either or both of the Applicants must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man. 

(5) At the time of the making of the order both the Applicants must have attained the age of 18.

(6)  The court must be satisfied that both

a) the woman who carried the child and
b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(8) The court must be satisfied that no money or other benefit (other than for the expenses reasonably incurred) have been given or received by either of the Applicants for or in consideration of

a) the making of the order,
b) any agreement required by subsection (6)
c) the handing over of the child to the Applicants or
d) the making of arrangements for the view to the making of the order unless authorised by the court. 

  …
(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her  artificial insemination.
…”

So, very broadly, before making the parental order, the Court must be satisfied that the child was the subject of a surrogacy arrangement and be the product of a use of gametes from one of the applicants, and that the other party consented (in a meaningful and informed way) to the pregnancy and to the making of a parental order; although s19(7) gives a way out where the mother cannot be found, or would be incapable of giving agreement.

[That feels a bit weird to me, since it suggests that the whole s19(6) issue of the mother having to have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order could be sidestepped by finding a surrogate who doesn’t really have capacity to agree it, but I’m sure that must be covered elsewhere and prohibited.  Okay, relatively sure.  Okay, dimly hopeful]

In considering whether the mother’s consent could be dispensed with because she could not be found, the Court made this determination

  1. 28.     First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the Applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the Applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.29.  Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks.30.  Thirdly, in the light of the changes affected by the 2010 regulations, the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order. Mr Ford submits, and I accept, that this includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.31.  Applying these principles to this case, I accept that these Applicants have taken all reasonable steps to obtain the woman’s consent.

    32.  Through no fault of their own, they have been given a false address. If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her. I accept that it is not the Applicants’ fault that they found themselves in this position. I am satisfied that they reasonable believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.

    33.  I note that Miss B appears to have given her consent to the making of the parental orders at an earlier stage, although in the circumstances I treat all documents and information provided by the clinic with caution. The fact that Miss B appears to have given informal consent earlier is a factor to be taken into account but for the reasons set out above, it carries little weight in my decision. I do, however, take into account the fact that as a matter of law the children’s welfare is my paramount consideration, and I further take into account that any further delay in reaching a decision is likely to be prejudicial to their welfare. I also take into account as required by the welfare checklist to be applied by virtue of the 2010 regulations, that there is realistically no likelihood that the twins would have any relationship with the surrogate, gestational mother, or any member of her family.

    34.  In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother Miss B is not required on the grounds that she cannot be found.

 

 

 

The payments made were also retrospectively approved – the payments amounted to £17,000.

36.  As set out above, section 54 (8) provides a condition of making a parental order that no money or other benefit (other than for expenses reasonable incurred) has been given or received by either of the applicant for or in consideration of the making of the order, any agreement required by the Act, the handing over of the child to the Applicants or the making of arrangements with the view to the making of the order, unless authorised by the court. The Applicants accept they have paid twenty seven thousand US dollars (which is approximately seventeen thousand pounds at current exchange rates) to the clinic for the surrogacy programme, on the basis that the clinic would then pay ‘reasonable expenses’ to Miss B in the sum of three hundred and fifty thousand rupees, approximately four thousand pounds at current exchange rates. The Applicants accept that the sums paid exceed a level that could be described as ‘reasonable expenses’. They therefore invite the court to give retrospective authorisation for the payments made.

37.  Unlike the question of consent, the issue of payments for surrogacy, and the basis upon which retrospective authorisation may be given, has been considered by the courts at first instance on several occasions in recent years, notably by Hedley J, who has played a lead role in the development of the law surrounding surrogacy, in four cases- Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam) and Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) – and, the most recently, the President Sir Nicholas Wall inRe X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam). From these authorities the following principles emerge.

(1) The question whether a payment exceeds the level of ‘reasonable expenses’ is a matter of fact in each case. There is no conventionally- recognised quantum of expenses or capital sum: Re L, supra.

(2) The principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas: Re S, supra.

(3) On the other hand, as a result of the changes brought about by the 2010 Regulations, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the children’s welfare as the paramount consideration: Re L, supra, and Re X and Y (2011), supra, per the President.

(4) It is almost impossible to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: per Hedley J in Re X and Y (2008), approved by the President in Re X and Y (2011) at paragraph 40. It follows that : ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making’, per Hedley J in Re L at paragraph 10.

(5) Where the Applicants for a parental order are acting in good faith, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate to give retrospective authorisation, having regard to the paramountcy of the children’s welfare.

38.  In this case, the twin’s welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their dealings with the Court and the other authorities. As I have set out above, the total sum paid equivalent to about £17,000. Although I remind myself that each case should be scrutinised on its own facts, I note that the total paid was somewhat less than that paid by the Applicants in the President’s case Re X and Y (2011), which also involved a surrogacy arranged by an Indian clinic. In that case the President ruled that the sum paid was not so disproportionate that the granting of a parental order  would be an affront to public policy.

39. I am therefore prepared to give retrospective authorisation for the payments made by the Applicants in respect of the surrogacy arranged in this case.

The Court suggested that it would essential in future cases to ensure that where a surrogacy arrangement was entered into that the applicants ensured that they had opened a line of communication with the birth mother so that her written consent could be obtained six weeks or later after the birth.

 

 

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