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
[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.
- 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.
- 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).
- 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).
- 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.
- 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.