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