A discussion of the law on surrogacy, and the case of D and L (Surrogacy) 2012 EWHC 2631 Fam
A lot of new caselaw this week, and this one is a little off the beaten track. It involves the issue of surrogacy, which is something at the moment I’m interested in, as there’s a pending case of public interest (reporting restrictions, upcoming criminal trial, can’t say anything more, sorry)
The case can be found here:-
The facts of the case are relatively straightforward – a couple decided that they wanted to have a child and being a same-sex couple the traditional route wasn’t open to them. They entered into dialogue with an agency the Kiran clinic from Hydrabad, who found them a woman who was prepared to become a surrogate. That woman was from India. A contract was signed. Twin babies were born and the couple were provided with those babies and returned to the UK with them.
In order to then obtain parental orders in the UK, they sought the mother’s consent to the making of such orders.
Because the UK provisions are that a consent given less than six weeks after the child is born is not valid (in order to give a mother who has hormonal feelings of bonding and attachment or hormonal surges post-birth generally time to settle on her true feelings), the contract was not sufficient to demonstrate the mother’s consent.
The couple asked the agency to assist with this, and found them to be somewhat lacking in their willingness to assist.
11. At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture.
Yes, you did read that correctly. I really hope that the single sheet of paper found its way into the court bundle. (And I can’t help speculating what it was – my gut feeling is a v-sign, or the bird , but was it a sketch or a photograph?)
The couple had not wanted to contact the birth mother directly, wanting to respect her privacy, but had to instruct an enquiry agent, whose search was fruitless.
“I am sorry to inform you that I could not locate Miss B. The address provided by the clinic where Miss B should be residing…is not the place where she lives. Property is currently empty but is former residence of [the caretaker/arranger]. His old clinic is on ground floor. Nobody there had any knowledge of Miss B or where she is living now. I have shown neighbours [identity] card of Miss B and they did not recognise her. I could not find out where she lives now and so could not get her to sign the forms.”
It seemed very likely that the address that the couple had been provided with by the agency was not accurate (although one has no way of knowing whether this was of the agency’s making, or whether they themselves had been misinformed)
[By the way, ‘misinformed’ takes me on a tangent to one of my favourite exchanges in cinema, from Casablanca.
Rick: My health. I came to Casablanca for the waters.
Captain Renault: The waters? What waters? We’re in the desert.
Rick: I was misinformed ]
As is often the way in the High Court, you get a nice pithy summary of the law, which is always a great starting point if you need to research the issue.
17. Before turning to the detailed provisions of section 54 of the 2008 Act, I remind myself of the important change to the law affected by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010. Regulation 2 provides:
“The provisions of the 2002 Act [that is to say, the Adoption and Children Act 2002] set out in column 1 of Schedule 1 have effect in relation to parental orders made in England and Wales and applications for such orders as they have effect in relation to adoption orders and applications for such orders, subject to the modifications set out in column 2 of that Schedule.”
The effect of this provision is, inter alia, that section 1 of the 2002 Act applies to the making of parental orders in the following terms:
“(1) This section applies whenever a court is coming to a decision relating to the making of a parental order in relation to a child.
(2) The paramount consideration of the court must be the child’s welfare, throughout his life.
(3) The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.
(6) The Court must always consider the whole range of powers available to it in the child’s case (whether under section 54 of the Human Fertilisation and Embryology Act 2008, the Adoption and Children Act 2002 as applied by regulation 2 of and Schedule 1.2 The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 or the Children Act 1989) and the Court must not make an order under that section or under the 2002 Act so applied unless it considers that making the order would be better for the child than not doing so.
(7) In this section, ‘coming to a decision relating to the making of a parental order in relation to a child’ the relation to a court includes
a) coming to a decision in any proceedings where the orders that might be made by the court include a parental order (or the revocation of such an order) and
b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an individual under this Act but does not include coming to a decision about granting leaving in any other circumstances.
(8) For the purposes of this section,
a) references to relationships are not confined to legal relationships,
b) references to a relative, in relation to a child, include the child’s mother and father.”
19. Those principles, in particular the paramountcy principle set out in subsection (2) and the checklist set out in subsection (4,) guide the court in exercising its powers to make parental orders under section 54 of the 2008 Act, which reads as follows:
“(1) On an application made by two people (‘the Applicants’) the court may make an order providing for a child to be treated in law as the child of the Applicants if
a) the child has been carried by a woman who is not one of the Applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
b) the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and
c) the conditions in subsection (2) (8) are satisfied.
(2) The Applicants must be
a) husband and wife,
b) civil partners of each other, or
c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
(3) Except in a case falling within subsection (11), the Applicants must apply for the order during the period of six months beginning with the day in which the child is born.
(4) At the time of the application and the making of the order
a) the child’s home must be with the Applicants and
b) either or both of the Applicants must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man.
(5) At the time of the making of the order both the Applicants must have attained the age of 18.
(6) The court must be satisfied that both
a) the woman who carried the child and
b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)
have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(7) Subsection (6) does not require the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.
(8) The court must be satisfied that no money or other benefit (other than for the expenses reasonably incurred) have been given or received by either of the Applicants for or in consideration of
a) the making of the order,
b) any agreement required by subsection (6)
c) the handing over of the child to the Applicants or
d) the making of arrangements for the view to the making of the order unless authorised by the court.
(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.
So, very broadly, before making the parental order, the Court must be satisfied that the child was the subject of a surrogacy arrangement and be the product of a use of gametes from one of the applicants, and that the other party consented (in a meaningful and informed way) to the pregnancy and to the making of a parental order; although s19(7) gives a way out where the mother cannot be found, or would be incapable of giving agreement.
[That feels a bit weird to me, since it suggests that the whole s19(6) issue of the mother having to have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order could be sidestepped by finding a surrogate who doesn’t really have capacity to agree it, but I’m sure that must be covered elsewhere and prohibited. Okay, relatively sure. Okay, dimly hopeful]
In considering whether the mother’s consent could be dispensed with because she could not be found, the Court made this determination
- 28. First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the Applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the Applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.29. Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks.30. Thirdly, in the light of the changes affected by the 2010 regulations, the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order. Mr Ford submits, and I accept, that this includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.31. Applying these principles to this case, I accept that these Applicants have taken all reasonable steps to obtain the woman’s consent.
32. Through no fault of their own, they have been given a false address. If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her. I accept that it is not the Applicants’ fault that they found themselves in this position. I am satisfied that they reasonable believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.
33. I note that Miss B appears to have given her consent to the making of the parental orders at an earlier stage, although in the circumstances I treat all documents and information provided by the clinic with caution. The fact that Miss B appears to have given informal consent earlier is a factor to be taken into account but for the reasons set out above, it carries little weight in my decision. I do, however, take into account the fact that as a matter of law the children’s welfare is my paramount consideration, and I further take into account that any further delay in reaching a decision is likely to be prejudicial to their welfare. I also take into account as required by the welfare checklist to be applied by virtue of the 2010 regulations, that there is realistically no likelihood that the twins would have any relationship with the surrogate, gestational mother, or any member of her family.
34. In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother Miss B is not required on the grounds that she cannot be found.
The payments made were also retrospectively approved – the payments amounted to £17,000.
36. As set out above, section 54 (8) provides a condition of making a parental order that no money or other benefit (other than for expenses reasonable incurred) has been given or received by either of the applicant for or in consideration of the making of the order, any agreement required by the Act, the handing over of the child to the Applicants or the making of arrangements with the view to the making of the order, unless authorised by the court. The Applicants accept they have paid twenty seven thousand US dollars (which is approximately seventeen thousand pounds at current exchange rates) to the clinic for the surrogacy programme, on the basis that the clinic would then pay ‘reasonable expenses’ to Miss B in the sum of three hundred and fifty thousand rupees, approximately four thousand pounds at current exchange rates. The Applicants accept that the sums paid exceed a level that could be described as ‘reasonable expenses’. They therefore invite the court to give retrospective authorisation for the payments made.
37. Unlike the question of consent, the issue of payments for surrogacy, and the basis upon which retrospective authorisation may be given, has been considered by the courts at first instance on several occasions in recent years, notably by Hedley J, who has played a lead role in the development of the law surrounding surrogacy, in four cases- Re X and Y (Foreign Surrogacy)  EWHC 3030 (Fam), Re S (Parental Order)  EWHC 2977 (Fam), Re L (Commercial Surrogacy)  EWHC 3146 (Fam) and Re IJ (Foreign Surrogacy Agreement Parental Order)  EWHC 921 (Fam) – and, the most recently, the President Sir Nicholas Wall inRe X and Y (Parental Order: Retrospective Authorisation of Payments)  EWHC 3147 (Fam). From these authorities the following principles emerge.
(1) The question whether a payment exceeds the level of ‘reasonable expenses’ is a matter of fact in each case. There is no conventionally- recognised quantum of expenses or capital sum: Re L, supra.
(2) The principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas: Re S, supra.
(3) On the other hand, as a result of the changes brought about by the 2010 Regulations, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the children’s welfare as the paramount consideration: Re L, supra, and Re X and Y (2011), supra, per the President.
(4) It is almost impossible to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: per Hedley J in Re X and Y (2008), approved by the President in Re X and Y (2011) at paragraph 40. It follows that : ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making’, per Hedley J in Re L at paragraph 10.
(5) Where the Applicants for a parental order are acting in good faith, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate to give retrospective authorisation, having regard to the paramountcy of the children’s welfare.
38. In this case, the twin’s welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their dealings with the Court and the other authorities. As I have set out above, the total sum paid equivalent to about £17,000. Although I remind myself that each case should be scrutinised on its own facts, I note that the total paid was somewhat less than that paid by the Applicants in the President’s case Re X and Y (2011), which also involved a surrogacy arranged by an Indian clinic. In that case the President ruled that the sum paid was not so disproportionate that the granting of a parental order would be an affront to public policy.
39. I am therefore prepared to give retrospective authorisation for the payments made by the Applicants in respect of the surrogacy arranged in this case.
The Court suggested that it would essential in future cases to ensure that where a surrogacy arrangement was entered into that the applicants ensured that they had opened a line of communication with the birth mother so that her written consent could be obtained six weeks or later after the birth.