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Breastfeeding mother versus gay couple

 

I think that this case has probably been in the news, or is about to be.

It is yet another example of a case where arrangements that were made before the birth of a child where conception was not the routine (birds do it, bees do it, even educated fleas do it) method, but a complex arrangement between adults that the adults involved did not properly record.

Re H v S (surrogacy agreement) 2015.

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/36.html

 

I will use fake names, because I find in these cases that the bare initials just leave you grappling around for what the heck is going on.

The child is M (Mary). Mary was born on 27th January 2014.

Mary’s mummy and daddy were not two people who loved each other very much and when a mummy and daddy love each other very much, they have a special cuddle.

Mary’s mummy S (Sarah) says that she wanted a baby, and a gay man that she knew, H (Harry) agreed that he would provide her with the genetic material to have a baby, and that when she had that baby, she would be the only carer for that child.

Harry, on the other hand, says that he and B (Bob) are in a committed homosexual relationship, wished to have a child, and reached an agreement with Sarah that Harry would artificially inseminate Sarah, and that after the birth, Harry and Bob would care for the baby together, but that Sarah would play an active role in the child’s life.

That is not so much a gap but a Grand Canyon in the different understandings of the people involved.

Ms Justice Russell said this:-

Very sadly this case is another example of how “agreements” between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court.

The Court had to deal with this as a straight private law children dispute under the Children Act 1989, rather than an application by Harry and Bob for a Parental Order under Human Fertilisation and Embryology Act, because Sarah did not consent to the making of a Parental Order  (and the Court have no power to make one if the biological mother does not consent)

Also, some of these adults were Romanian, some had been raised in Romania but were of Hungarian birth, and so the child is of mixed Romanian and Hungarian heritage, although all concerned now live in England.

We add into the melting pot of complexity here that the three adults concerned are not all of the same religion and there was a dispute about what religion the child should be baptised into. There was a Court order that Sarah should not baptise the child until the Court had heard argument about this and determined the dispute, but she did, and she also lied about it. Also registering Mary with names that had not been agreed or even discussed.

 

On the 21st May 2014 the Applicants applied for prohibited steps orders regarding the child’s name and her baptism. The Respondent had registered the child on her own with her surname and with first names chosen by her that had not been discussed with the Applicants or agreed between the parties. The Applicants also applied for an order prohibiting S from having M baptised according to Christian Orthodox rites as although all three of the parties are Christian H is a Protestant and B is Roman-Catholic. An order was made by Recorder Bazley QC which prohibited any party form removing M from the jurisdiction or from causing or arranging for her to be baptised or christened. In the event S not only disobeyed the order of the court and had M baptised but lied about having done so. She informed the court and the parties that she had M baptised in October 2014 at the hearing in January 2015; this despite her assurances to the contrary to the guardian in December 2014 and to the court in her own statement dated the 7th January 2015.

 

Towards the end of the hearing, the Court heard that a Tweet had been sent about the case and that the tweet had been tagged with the name of a reporter at ITN, no doubt with the intention of stirring up a public debate.  {I think that I have seen that tweet, or retweeted versions of it on my own twitter feed, which is why I had been watching out for this judgment}

 

  1. At the outset of the trial the guardian (on behalf of M) and the Applicants drew my attention to the publication of information regarding the case on social media. The first was a posting on Facebook on the 5th October 2014 by a person known to be a friend of S. The guardian was made aware of this post soon after it was published but considered that there was no information by which M herself could be identified and decided not to bring it to the court’s attention. I accept from the information contained in it that the source of that information must have been one of the parties (or someone very close to them) and it is more likely than not that that source was S. The person concerned wrote to the court and had been involved in “mediation” between the parties. This is an example of S’s mode of conducting her case not through the court alone but by recruiting support from others to pursue her case in other arenas. I do not accept that he would have published this or the Tweet in January 2015 without her knowledge or consent.
  2. On the 16th January 2015 the guardian was made aware that the same person had made the following Tweet: Wealthy gay couple force child from good mother’s breast setting bad precedent. Starts Mon19Jan 10am High Court RCJ, court 35,
  3. The Tweet which was available to anyone online was tagged to alert a reporter at ITN. S denied any part in this tweet, and while it may be the case that she did was not directly involved in posting the tweet, it is in keeping with her conduct of the case during which she sent emails copious emails to the court, to the President of the Family Division and pursued an appeal against the order made on the 1st October 2014 apparently against legal advice. The solicitor for the Applicants, sent an email to the person who had tweeted requesting him to take the tweet down and informing him of the objections of the Applicants to him tweeting about this matter.

 

During the hearing, the mother raised two major arguments. The first was that as she had been breast-feeding Mary, that had led to a bond and relationship which would be damaging to break.

  1. S has made a great deal of her status as a breast-feeding mother and the disruption to M’s routine of staying with her father overnight; not least because M “co-slept” with S and was breast fed during the night. Although some weeks after the hearing concluded S changed her position and agreed to M staying over-night with her father and B it is evident that she did so as she accepted that she had to following the decision to refuse her permission to appeal. Prior to that S had, as I have set out above, used the fact that she continued to breast-feed M as a reason for reducing or limiting contact and claimed that it was in M’s best interest. It is the current orthodoxy, which the court does not gainsay, that breast feeding, if possible, for the first year or more as it provides many health advantages for a child. In her first statement in April 2014 S said that she wanted to breast-feed for the first 9 months; as time has progressed so the length of time she wishes to breast-feed has increased. In her oral evidence she was unable to say how long it would go on but indicated that it would be as long as M wanted it to which could be as much as several years into the future.
  2. Part of S’s case is that she sleeps with M which also provides the child with health and emotional advantages in respect of their co-attachment. The practice is not recommended for babies and small infants as there is a danger of over-lay and as a result may be considered to be more controversial, but that was not a matter that I was asked to decide. This practice when it takes place cannot be used as a reason to inhibit or curtail a child’s right to form a positive and substantial relationship with her other parent or parents; which was a direct effect of S’s practice in this case and she used it as part of her argument to support the curtailment of overnight stays. Based on the needs of a child, as M grows she must be allowed to become independent and grow as a human being separate from her parents and carers. At her age it is most unlikely that she will not suffer any harm sleeping on her own; indeed she has already experienced it without ill effect when she stayed with her father and his partner overnight.

The second was that Harry and Bob were in a gay relationship and that all such relationships were promiscuous and inherently wrong and unstable.

  1. I have now heard the oral evidence of all the parties and read copies of electronic communication between them. The dispute about the agreement is largely based on S’s assertion that she and H decided to parent a child together, and that B was to play no part other than as the child’s father’s “boyfriend”; to use her word. S has sought to present herself throughout the proceedings as a victim and someone whose “rights” as a mother and as a woman have been trampled over and abused. She claims, in terms, that H and B are attempting to remove her child, from her breast, in a cruel and calculated attempt to build a family and that she is being discriminated against and victimised. She describes H and B in an openly disparaging and dismissive way saying that they are not like a very well known celebrity couple (who she names) who have had children by surrogates; “They are not a gay couple having a child”.
  2. S repeatedly made allegations, wholly unsupported by any objective evidence, about H and B; about their relationship and about their lifestyles. About the former she repeatedly relied on stereotypical views on the nature of their relationship suggesting that she knew “they have an open relationship, what gay people call it, have sex in groups.” There is no foundation to this claim which I consider to be a reflection of her deliberate attempt to discredit H and B in a homophobic and offensive manner. At the outset of the case she filled in a form (C1A dated 19th February 2014) alleging harm and domestic violence. She said in this form that H “has an open view on class A drugs. He believes that it is OK for people to use class A drugs and has said he would like to try it himself” She went on that H “is a self-confessed antibiotics user he gets his own supply of very strong antibiotics from Belgium and use [sic] them all the time”. S went on to allege that H might give them to M if he had unsupervised contact; and to allege that there were “loads of people coming and going” from the Applicants’ address and that drugs may be used at that address. None of these allegations were followed up before or during the hearing when the Applicant’s gave oral evidence. The abandonment of allegations during the trial lends little to the weight that that court can give her evidence as a whole.
  3. I had the opportunity of re-reading the emails sent to the court and evidence filed by S both during this case and after it concluded. It is peppered with allegations, innuendo, offensive and disparaging comments about H and B. I do not need to set them all out or repeat them as most of it was never put to the Applicants and was not pursued in evidence. I had the opportunity to see the Applicants and S in court during the five days of the hearing and on other occasions when they have appeared before me. I saw S give evidence and observed her while she listened to the evidence of others. There was never the slightest indication of a cowed, submissive or victimised person. On the contrary she conducted herself in a very confident and most assertive manner throughout. She has sought to impose her will on the court and manage the proceedings. The need to express her breast milk while genuine was used to interrupt and disrupt the evidence of the Applicants. The evidence in support of this was the manner in which she could, suddenly, regulate it after their evidence was completed

 

On the factual dispute – whether this conception was intended (as Sarah says) to be a baby for Sarah to look after with Harry donating his sperm or (as Harry and Bob say) a surrogate arrangement where Harry and Bob would care for the baby but Sarah would play a role in the baby’s life, the Judge heard evidence and read a lot of emails between the main players.  The Judge concluded that the stated  intention between the parties  HAD been for Harry and Bob to be the main carers, and more significantly that rather than this being a case where mum changed her mind after the birth (as can happen), that she had basically tricked and manipulated these men into providing a baby for her when they would never have agreed if they had known it was always her intention to keep the child.

 

  1. The emails do not set out an agreement in terms and it is H’s case that after the beginning of February the discussions were oral and went on to include B. The fact that there are not any emails produced after February supported his case. It also fits in with the insemination taking place about the fourth week of April 2013, in the Applicants’ home with B there on at least one occasion. It is, and I use the term advisedly, inconceivable that B was not aware of what was going on before April and was not party to any of the discussions. In this as in much else I do not accept the evidence of S. Her later use, in evidence, of the term “sperm donor” is completely at odds with the tone and contents of her emails in February. It is not possible to accept both from what H told her in the emails and from the obviously close relationship of H and B (which I have seen at close quarters throughout the trial) that S could have ever thought that she was having a child with H to the exclusion of B; she says so herself in her emails. I conclude that she must have either deliberately misled the Applicants about her intentions or changed her mind as the pregnancy progressed.
  2. On the balance of probabilities, and for the reasons set out above and in the following paragraphs of this judgment, I find that S deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date. Having at first encouraged H to be involved S was already trying to exclude H not long before M was born from involvement with the birth and with the child. I accept the evidence of H and B that S was a part of the arrangements that were made to rent a larger property. If as she claimed they were aware from the outset that any child would be her’s and live with her there would have been no reason to go to the expense of moving and furnishing a larger home. It highly unlikely that S could ever have thought H, who had told her he so desperately wanted a child in his emails, would decide to act as a sperm donor for her, there was no reason for him to do and it would have been entirely at odds with his own plans and wishes.
  3. S has consistently done all she can to minimise the role that H had in the child’s life and to control and curtail his contact with his daughter. Far from being a child that she conceived with her good friend, as she describes it, her actions have always been of a woman determined to treat the child as solely her own. She made sure that H was not at the hospital when M was born; she registered the birth without putting H on the certificate and did not give the child any names except those chosen by her and did not reflect the child’s paternal family names in that choice. The history of these proceedings bears this out; H and B were left with no choice but to issue applications.

 

 

The question then was where this child should live during her childhood?  You need to read the whole judgment to get a proper feeling for the case, there was a lot going on, but it finally gets distilled here:-

  1. The evidence has to be considered in the light of the child’s best interests. I have used the welfare checklist as the basis for my decision because I am concerned with how to best provide for M’s physical, emotional and educational needs under the provision of s 1 (3) (a) CA. Although M is not yet at school it is more likely than not that the parent who can best meet all her other needs and is most likely to be able to provide her with a secure home and stable upbringing with room to grow emotionally for the remainder of her infancy is more likely to meet her educational needs fulfil her potential in the future. The latter requires that M is afforded the scope to grow up in an environment where conflict is at a minimum. M is not yet able to say as she is just learning to talk so I do not know her expressed wishes and feelings but I assume it that for the immediate future she would want to continue to remain with S and continue to spend time with and H and B, including overnight stays.
  2. Any decision that M lives with H and B and spends much less time with S is bound to affect her, likely to upset and distress her in the short term at least and necessarily amounts to a change in her circumstances. However familiar M is with her home with H and B she would miss her mother with whom she has spent most of her time. Against that I will weigh the harm that she is at risk of suffering if she remains with her mother. As she gets older she will become more aware of, and will be directly affected by, her mother’s negative views about her father and B. These views will affect her own sense of identity; negatively inform her view of herself and where she fits into the world.
  3. I can only judge S’s ability to parent M based on recent history and based on that history M is more likely than not to suffer harm; to continue to be taken to the GP and to hospital at times when it is not necessary in furtherance of S’s determination to control M’s contact with H and B or in respect of contact or any other dispute she may pursue over M with H in the future. It is likely that S will present H and B in a negative way to M and give her limited opportunity to understand the history behind her conception and of how she came to be here; nothing in S’s conduct of her case can offer any assurance to the court that S is capable of doing that for M in a balanced way that is free from S’s own agenda.
  4. At present S is able to care for M well physically but there are already grounds for concerns about her mother’s over emotional and highly involved role in this infant’s life. Ultimately the role of a parent is to help the child to become independent. This is a child who at 15 months old is still carried by her mother in a sling on her body. M spends most of her time with her mother who does not set out any timetable for returning to work, as S would have to, to provide for M and for herself. There is a potential for enmeshment and stifling attachment rather than a healthy outward looking approach to the child’s life. The question is who benefits most from this chosen regime which points towards an inability to put the child’s needs before her mother’s need or desire for closeness.
  5. The attachment which will develop in an infant who sleeps with her mother, spends all day being carried by her mother and is breastfed on demand through out the day and night raises questions about the long term effect on M. From the point of view of this judgment it further begs the question as to who benefits most from the regime S has chosen to impose without reference to M’s father, H. I have little doubt that the breast-feeding was used a device to frustrate contact during the proceedings, a conclusion supported by S claiming at first that she could not express her milk which so reduced the time available for contact; subsequently when it was clear that M could be fed and was able to eat other foods S no longer had difficulty expressing milk. I am forced to conclude that S has shown herself to be unable to put M first and that she is unable to meet M’s emotional needs now and in the long term.
  6. The contact that S has with H and B has been very successful; the guardian who has observed it more than once described M as alert, happy and relaxed in her surroundings. Unlike S, H and B have not made a plethora of allegations against S; apart from those directly concerned with contact or her conduct towards them during contact. They have said that they want there to be as harmonious a relationship as possible between the adults and their support of M spending time with her mother is evinced by the level of contact they suggested. Their conduct has been consistent with this approach and while it is exemplified by an offer of contact which is greatly in excess of that proposed by the guardian they have never sought to exclude S from M’s life and to the end of the proceedings expressed the hope that the relationship between the parties could become more harmonious for the sake of M. The Applicants could easily have adopted the recommendation of the guardian that contact should be once a month but they have not done so.
  7. While to move a young child from her mother is a difficult decision and is one which I make with regret as I am aware that it will cause S distress I conclude that H is the parent who is best able to meet M’s needs both now and in the future. It is he who has shown that he has the ability to allow M to grow into a happy, balanced and healthy adult and it is he who can help her to reach her greatest potential. I accept the evidence of the guardian that H and B have had a child-centred approach throughout. It was obvious from their oral evidence and their statements. H, in particular, has always sought to put M first.
  8. H thought carefully about having a child and his discussions with S in the emails that they exchanged in February 2012 are an illustration of his awareness of the difficulties that would be encountered as well as a clear expression of his very great desire to have a child; and to have that child with B. It is highly unlikely that H would have reached any agreement about having a child without involving B, not least because it would have jeopardised his relationship with B and H’s future role as father to the child he very much wanted to have.
  9. The best that can be said for S is that she deluded herself about the nature of the agreement she was reaching first with H and later with H and B. It is very unlikely that such an obviously astute and determined woman would have left anything to chance when it came to having a baby. While I do not rely on the substance of the CA proceedings in Kent I do take account of the fact that S no longer has her daughters living with her and has limited contact with them. This situation, whatever its cause and whatever her role in it, will indubitably make it more likely that she wanted, as she said, to have another child for herself. The emails that she sent were deliberately misleading and S continued in the deceit, allowing H to believe that he and B would be the main carers for the baby until pregnancy was well advanced.
  10. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M’s identity and place within her family.
  11. M should live with her father H and his partner B as it is in her best interests to do so; I reach that conclusion having had regard throughout to the welfare checklist and to M’s interests now and in the long term.

 

 

The Court therefore decided that Mary should move from Sarah’s care to live with Harry and Bob.  We will wait to see whether the media reporting deals with the substance of the case that the Judge had to decide, or whether it follows the easy sound bite narrative of the tweet – Court rips child away from mother’s breast to give to gay couple…

 

There is a Reporting Restriction Order in place that the child and the adults involved not be named, and as ever it applies to me and any commenters, so if you do know the names, I don’t want to see them here.

 

Oedipus Wrecks

I have written about some strange cases involving the Human Fertilisation and Embryology Act, but this one might be the strangest.

 

Re B v C (Surrogacy : Adoption) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/17.html

 

[Read the piece first, it makes more sense that way – don’t read the judgment till you have read the piece]

 

In this case B (let’s call him Bob, because it makes following the story a bit easier) decides that he wants to have a baby. Bob doesn’t have a partner, he is a single man in his twenties, but he wants to have a baby.

 

Bob decides to get a surrogate mother to have his baby. This surrogate mother is C (let’s call her Carol – not her real name).

 

Carol is married to D (let’s call him Derek). Derek consents to this procedure.

 

The baby is born. The baby is A (let’s call him Alfie)

 

The baby is the biological child of Bob and Carol. But the legal parents are Carol and Derek. Bob doesn’t have PR. Bob is not the child’s legal father, Derek is.   (Because he is married to Carol and consented to the pregnancy – if he wasn’t married or didn’t consent, Bob would have been the legal father)

 

So Bob makes his application to Court. Now, as a single parent, a parental order is not open to him (which is the usual order sought post surrogacy)

 

Under section 54 of the HFEA 2008 in situations where a child has been carried by another woman a parental order can be made by the court, this provides for a child to be treated in law as the child of the applicants. However, all the requirements under section 54 have to be met, one of which is that there have to be two applicants who are either married, civil partners or are ‘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.’ (Section 54 (2)). A single person is therefore unable to apply for a parental order.

 

Bob has to instead, as a single carer, apply for an adoption order. As he isn’t the child’s legal father, he is not prohibited from adopting his own child (because legally it isn’t his child because of Derek’s marriage to Carol and consent to the process)

 

 

With me so far?

 

Here is the tricky part.

 

How should I say this? Remember Carol, who had the baby on Bob’s behalf? Well, on Sunday 15th March, Bob will be sending Carol a card. Not just on Alfie’s behalf, as many dads do. But on his own behalf.

 

Carol is Bob’s mum. Derek is Bob’s stepdad.

 

Remember at the moment that the biological parents of Alfie are Bob and Carol * But the legal ones are Carol and Derek.
[*A commentator on Twitter has found in the judgment the reference to there being an egg-donor that I couldn’t find in the judgment. So genetically Carol is not Alfie’s mother]

Alfie is biologically Bob’s son and also his brother. But legally, Alfie is Bob’s brother.

 

Mrs Justice Theis must have called on all of her powers of understatement to summarise this arrangement as :-

 

This, admittedly, unusual arrangement was entered into by the parties after careful consideration, following each having individual counselling and with all the treatment being undertaken by a fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA) who are required under the HFEA code to consider the welfare of the child before embarking on any treatment.

 

 

Is this legal? It feels like it shouldn’t be legal? Is it legal? I agree with you, it doesn’t feel like you should be able to have a baby with your own mother, even if it is artificial insemination. That feels like a baby who is going to spend a lifetime in therapy.

 

Always worth examining your own thoughts when you have a strong visceral reaction to something. It is pretty common in surrogacy for a woman to ask her sister to have the baby for her; if Bob was Betty and Carol was Betty’s sister that wouldn’t even raise an eyebrow. Why is it that surrogacy between a mother and son feels… somehow a bit “Take a Break” ?

 

[I suppose on this basis, a female Bob – let’s call her Betty, could decide to have a baby with artificial insemination with her dad Derek providing the raw material. Let’s call that baby Electra and be done with it. I’d be interested to know which scenario makes you feel less comfortable, or even whether you have no adverse thoughts about either]

 

It is legal and the people involved in this, from what I read of the judgment, are all perfectly normal, sensible and decent people who used a legal solution to solve Bob’s problem that he wanted to be a father and didn’t want to wait till he found a partner. (That again is something that if Bob was Betty, nobody would bat an eyelid about)

 

Unusually, and where the legal aspect of this case is noteworthy, is that it is only the fact that Bob and Carol are related that stops the agreement they reached about Bob adopting Alfie being a criminal offence.

 

Underlining here shows all the offences that would have been committed by Carol agreeing to have a baby for Bob to adopt (if they weren’t mother and son)

 

The ACA 2002 provides restrictions on arranging adoptions in section 92, the relevant part provides

 

 

(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

 

(2) The steps are—

 

 

(a) asking a person other than an adoption agency to provide a child for adoption,

(b) asking a person other than an adoption agency to provide prospective adopters for a child,

(c) offering to find a child for adoption,

(d) offering a child for adoption to a person other than an adoption agency,

(e) handing over a child to any person other than an adoption agency with a view to the child’s adoption by that or another person,

(f) receiving a child handed over to him in contravention of paragraph (e),

(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).

 

 

 

(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.

(4) The condition is that—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is the partner of a parent of the child.

 

Breach of s 92 is a criminal offence under s 93 ACA 2002.

 

 

We’ve established that the actions of Bob and Carol would amount to a criminal offence under s92.

 

There are two circumstances in which the offence doesn’t apply, from s92(4)

 

Either Bob is a parent, relative or guardian of the child

 

OR he is Carol’s partner (which thankfully he isn’t) or Derek’s partner (which he isn’t)

 

He isn’t, in law a parent or Guardian of Alfie, but he might be a relative.

 

And the relative bit is defined in s144 ACA “relative”, in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage [or civil partnership]

 

 

So the offences in s92 don’t apply (I actually think that offence s92(a) which isn’t covered by the s92(4) defence still applies, but it does seem a bit weird if ‘asking someone if they will have a child that you can adopt’ is a crime whereas ‘negotiating with them with a view to achieving that’ isn’t. So I can’t see anyone in Bob’s position being prosecuted for that)

 

What this case shows is that if you are a single person, surrogacy is something of a legal minefield. You can’t apply for a Parental Order. And if you plan instead to go the adoption route, then you risk falling foul of the criminal offences – since if you aren’t directly related to the child taking any step to arrange or agree it or handing over the child is a criminal offence.

 

The placement would also be a Private Fostering Placement pending the court making its decision (unless like Bob, you are related to the child), meaning that social workers would need to be involved.

 

  1. By virtue of the provisions of the HFEA 2008 set out above A and B have the same parents and, therefore, B is the legal brother of A. This means that in the unusual circumstances of this case, B met the conditions of s92 (4) (a) ACA 2002 with the result that when C and D placed A for adoption with B they were acting lawfully.

 

 

  1. The parties have also drawn my attention to the fact that, were it not for the highly unusual fact that B is a relative of A, when C and D placed A into B’s care, the placement would have fallen within the definition of a private fostering arrangement under the Children (Private Arrangements for Fostering) Regulations 2005 (SI 2005/1533).

 

 

  1. These regulations impose an obligation on both the legal parents of a child, as well as the proposed carer, to notify the appropriate local authority of the intention to care for a child under a private fostering arrangement. The obligation in these regulations arises of out the Secretary of State’s power to make regulations under paragraph 7 of Schedule 8 of the Children Act 1989 (CA 1989), which in turn supplements the provisions in s.66 of the CA 1989. Breach of the provisions of s.66 CA 1989 is an offence under s.70 CA 1989. It is of note that when a child born as a result of a surrogacy agreement, is placed in the care of intended parents who intend to apply for a parental order, the placement is not treated as a private fostering arrangement because of the effect of The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 Sch 4 para 12).

 

 

  1. What this case highlights, is that but for the close familial relationship between B and C, their actions would have breached these important statutory provisions and potentially left them liable to a criminal prosecution under both s.93 ACA 2002 and s.70 CA 1989.

 

 

  1. It is therefore imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice as to how to proceed as adoption is the only means to ensure that they are the only legal parents of their child. The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child.

 

 

The wording of s92 opens the door to the possibility that a single carer could do all of this if the High Court had granted permission in advance. I can’t think for the life of me what application you’d make (before the birth of the child or discussion about whether a stranger would have a baby for you to adopt had happened) but on the wording of s92, it seems like the High Court can by giving its blessing stop those actions being a crime.

 

 

The adoption order was made (and despite my own personal feelings of disquiet / ickiness about the perfectly legal arrangements, it is worth noting that the professional and independent assessments about everyone were clear that Bob would be a great carer for Alfie)

 

What is apparent from the reports is that the parties thought carefully about this arrangement, pausing, reflecting and seeking advice at each stage. In my judgment a critical feature of this case are the obviously close relationships within this family; it is an arrangement that was entered into not only with the support of the parties to this application, but, importantly, also the wider family. The strength of these familial relationships, and the consequent support they provide now and in the future, will ensure A’s lifelong welfare needs are met. An adoption order will provide the legal security to A’s relationship with B, which will undoubtedly meet A’s long term welfare needs.

 

 

Therefore, B’s application will be granted and an adoption order made.

 

 

All the very best for Bob and Alfie (not their real names) in the future.

 

If you do have a client call into your office to discuss with you their plans to have a baby with their own mother, then (a) you now know what to do and (b) if you can maintain your face as an impassive mask then I am never playing poker with you.

 

 

 

 

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.

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