Tag Archives: HFEA

Overseas surrogacy

Posted on August 5, 2014 by suesspiciousminds

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.

 

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

 

https://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

https://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.

 

 

 

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yet more international surrogacy

Posted on July 2, 2014 by suesspiciousminds

 

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.

 

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Go to Court on an egg

Posted on March 27, 2014 by suesspiciousminds

 

 

[with apologies to Tony Hancock and Fay Weldon for twisting their slogan]
Even by HFEA case standards, this one takes some following. Although as we know from the High Court we are all expected to be experts in the HFEA now.

It is Re G (Children) 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/336.html

Helpfully, even from the outset, we learn that although the case is called Re G, the children are referred to as “D” and “the twins” – nobody ever gets called “G” at any point.

We have a single-sex couple, A and R. They wanted to have some children. A donated her eggs, which were fertilised by an anonymous donor, and implanted into R, who gave birth in the usual way. Those children were the twins.

There were some fertilised embryos left over from the process, and A later used one of those to have her own pregnancy – that produced child D. [Quite a few years later]

Now, biologically, D and the twins have the same biological mother A, the same (anonymous) biological father and are full siblings.

However, legally, the mother of D is A. The legal mother of the twins is R.

Even though A and R were raising the children together, until they separated, the children (who were full biological siblings) had different legal mothers – A was the legal mother of D and had no legal status in relation to the twins, and R was the legal mother of the twins and had no legal status in relation to D. And although the twins and D were biological siblings, in law they were only half-siblings.

[This is reminding me of the beginning of SOAP, where the voiceover says “Confused? You will be” ]

All of this probably worked out okay, until A and R separated (they don’t even agree when they separated – R says they separated in 2008 but lived together as friends until 2012, A says they were in a relationship until 2012 and then separated)

It is to their credit, as the Court of Appeal observed, that when they came before Her Honour Judge Black, they had managed to resolve where the children would live, contact arrangements and were left with one single issue.

Should there be a joint residence order in relation to the twins, this being the only way that A, their biological mother, would have parental responsibility in relation to them.

Her Honour Judge Black considered that carefully, and it is fair to say that the case law provided very little in the way of guidance to resolve a difficult issue. She eventually refused the order, hence A appealing to the Court of Appeal.

[I have to say, I would have pragmatically have made the order, but made it plain that the twins primary home was with R, and it was an order made to achieve the legal status that A warranted as their biological mother]

18. She began her judgment by explaining that she thought it appropriate that the order made by the court should recognise that only one of the parties was the twins’ mother and therefore she should have sole parental responsibility for them. In contrast, she remarked that the appellant is not a parent of the children and that her status should not be elevated in that way (§4). She considered that the contact arrangement, coupled with the agreement to provide information about education and medical issues and for a limited delegation of parental responsibility was sufficient to recognise the importance of the appellant’s involvement in the children’s lives (§9).
19. The judge thought it of significance that in relation to D, the parties had not taken advantage of the provisions of the Human Fertilisation and Embryology Act 2008 which would have enabled them both to be parents of D. From this, she inferred that there had not been an intention to bring D up as joint parents and, I think, drew the further inference that the same was true of their intentions in relation to the twins. This led to her saying that “there is no question at any point of [the respondent] sharing parental responsibility of [the appellant’s] child with her and, therefore, it would seem on that basis alone, to be wrong that she should expect to share responsibility for [the respondent’s] children” (§8).
20. A theme of the argument on behalf of the appellant was that without a shared residence order, she would be marginalised by the respondent. The judge said that she did not see from reading the parties’ statements that there had been inappropriate marginalisation of the appellant and she considered that the respondent had shown that she recognised the importance that the appellant has in relation to the children by her agreement in relation to contact and the provision of information.
21. In contrast, the judge said that she was concerned about how the appellant “may operate her parental responsibility if she were given it” (§5) and in fixing on a sole residence order as appropriate, she referred to “the risks which may be involved in [the appellant] sharing parental responsibility” (§9).The source of her concern appears to have been particularly the threat to take matters to the press, although I think I interpret her correctly (§5 of the judgment) as saying that it had not been suggested in submissions that this continued to be a problem. It seems she may also have been taking into account what she described as “a sad history to how things have developed over certainly the course of this year and last year”.

 

The Court of Appeal were aided in their decision-making by some recent authorities, and some lovely cut-and-thrust from the two counsel representing A and R (A is the applicant, R the Respondent)

23. Ms Campbell, who appeared on behalf of the appellant, argued that the judge had failed to give weight to some important features of the case, including that the appellant was the biological mother of the twins, that she had cared for them for four and a half years, and that she would be taking a parenting role in respect of them for the rest of their lives.
24. Ms Foulkes for the respondent argued that these matters were known to the judge but she was entitled to give weight to the fact that the respondent is, as she put it, drawing on the speech of Baroness Hale in In re G (Children)(Residence: Same-sex Partner) [2006] UKHL 43 [2006] 1 WLR 2305, “their gestational parent, their legal parent and their social and psychological parent”.
25. Ms Campbell argued that the judge had set too much store by the fact that, by virtue of the Human Fertilisation and Embryology Act 1990, the respondent was “the mother” and therefore overlooked the fact that the appellant was a “parent”. She submitted that the twins have regarded the appellant as their parent all their lives and, during the extensive contact that there will be in future, she would continue to take that role. She submitted that they would naturally expect her to be as involved in matters such as schooling as the respondent and, without parental responsibility, she would not be able to be.
26. Ms Foulkes responded that the law deliberately distinguishes between the genetic mother and the gestational mother. It is of note, she said, that it is the gestational mother who has automatic parental responsibility. The mere fact of genetic parentage is not sufficient, she said, to justify a shared residence order, and even if the judge did find that the appellant had played a parental role, that did not require her to make a shared residence order, see Re R (Parental Responsibility) [2011] EWHC 1535 (Fam) [2011] 2 FLR 1132 where Jackson J did not grant a free-standing parental responsibility order to a step-father who had been and continued to be a psychological parent to the child.
27. Ms Campbell complained that the judge had not identified the risks that she felt may be involved in sharing parental responsibility, submitting that there are no grounds to believe that the appellant would interfere with the respondent’s exercise of her parental responsibility. Ms Foulkes said that the judge’s reference to the threat of the press was enough and the judge could have cited many examples from the appellant’s statement of her referring to her own biological role, failing to recognise the importance of the respondent in the children’s lives, and criticising the respondent’s care of them.
28. Ms Campbell submitted that the judge was wrong to have been influenced by the fact that the respondent was to have no parental role in relation to D; that was irrelevant when considering what was in the interests of the twins. Ms Foulkes’ answer was that this was a relevant factor because it undermined the appellant’s case that the intention had been that she and the respondent would be joint parents of the twins and were intending, with the birth of D, to add to their family. On the contrary, it was said, the evidence showed that the intention had always been for the respondent to be the sole legal parent for the twins and the appellant the sole legal parent for D. It was also relevant, Ms Foulkes said, that the three children would be in different legal situations if a shared residence order was made and the twins would struggle to make sense of why they had two parents with parental responsibility and D did not.

(even though I would have made the shared residence order, I think Ms Foulkes points at para 26 which go in the opposite direction are compelling. It is harder to resolve this than you might think)
28. Discussion
29. It was common ground between the parties that a shared residence order could be made in order to confer parental responsibility. The question is whether the judge was wrong to take the view that it was not in the twins’ best interests to make such an order here.
30. Families are formed in different ways these days and the law must attempt to keep up and to respond to developments. To some extent, the judge was right to say that no decided authorities assisted her greatly. Certainly there is nothing which is precisely in point. It might, however, have been helpful if the parties had invited her to consider the legal framework, including some of the authorities dealing with the nature of parental responsibility and showing how the concept had been approached in new situations which were not centre stage when it first made its appearance. Because, for reasons I will give in due course, I would dispose of this appeal by overturning Judge Black’s order and remitting the matter for rehearing, I thought it might be of assistance to gather together some of the learning that is available even though, in order to do so, I have departed from the parties’ submissions and relied on my own research.
[The research here is excellently set out – it would make this piece rather too long to rehearse it all, but check it out in the judgment if you are interested]

I return to consider the issues arising in this appeal. It seems to me that the judge was put in a difficult position, albeit that this happened for the best of reasons. As the authorities show, a decision such as that which she was asked to take is heavily dependent on the particular facts of the case. Many of the facts here were hotly disputed and there was neither an agreed factual framework nor any factual findings made by a court. No judge wishes to put parties through more litigation, particularly not where, as here, they have at last managed to reach a sensible agreement on much that was in issue between them. Sometimes a judge has no choice but to do the best he or she can to ascertain the facts on the basis of the written material and submissions only; proceedings under the 1980 Hague Convention quite frequently have to proceed in this way. Sometimes the appropriate factual findings are sufficiently obvious for oral evidence not to be required. However, sometimes it is not at all clear on the papers where the balance of probability lies in relation to disputed facts which are central to the judge’s thinking. In those cases, notwithstanding an invitation from the parties to act on submissions only, it may not be realistically possible for a judge to make a determination without hearing some evidence. It seems to me that this case was such a case.
It may not be very surprising that the grounds of appeal did not include a complaint that the judge had made findings without hearing any evidence, as the parties had asked her to rule on the issue on submissions only. Looking back at the process however, I think that it resulted in the judge’s decision being built on foundations which were rather wobbly. This was compounded by her not having articulated, beyond the threat of the press which the appellant had abandoned, what led her to believe that the appellant would interfere with the care of the children if she had parental responsibility, why she thought that would continue to be a risk notwithstanding the appellant’s abandonment of her residence application, and the form she thought the interference would take.
The Court of Appeal felt that Her Honour Judge Black, though clearly faced with a very difficult decision, had given too little emphasis to the biological relationship between A and the twins, and that the decision had to be set aside. The Court of Appeal did not, however, think that they could simply substitute a joint residence order because the disputed facts went to the heart of that decision. Therefore, they decided that the case needed to be reheard, with either an agreed factual matrix or a Judge making findings on the essential disputed matters.

59. I would end with some words to the parties. I urge them to reach agreement about the issues that remain between them. One can well see that, subject to issues about interference and undermining, a judge might be inclined to recognise the distinctive features of this case by making a shared residence order to confer parental responsibility on the appellant, given her past and continuing involvement in the twins’ lives, her role as their genetic parent, and the fact that she is the mother of their sibling. Whether that turns out to be appropriate will depend very much upon what transpires in the new hearing and I express no concluded view about it. What I am, however, quite confident about is that a further hearing should be avoided if at all possible. I repeat what I said in T v T [2010] EWCA Civ 1366 at §49:
“Childhood is over all too quickly and, whilst I appreciate that both sides think that they are motivated only by concern for the children, it is still very sad to see it being allowed to slip away whilst energy is devoted to adult wrangles and to litigation. What is particularly unfair is that the legacy of a childhood tainted in this way is likely to remain with the children into their own adult lives.”
I think the parties realised this when they reached the agreement that they did in front of Judge Black. I am sorry that the arrangements fixed that day cannot stand in their totality. But further agreement is still an option.

 

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

Posted on March 6, 2014 by suesspiciousminds

 

Re JP v LP and Others 2014

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

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

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

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

 

2 Negotiating surrogacy arrangements on a commercial basis, etc.

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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One flew over the Cuckold’s nest

Posted on August 1, 2013 by suesspiciousminds

The peculiar set of facts of Re M 2013, which hinged on whether a child had been conceived by artificial insemination, or in the traditional way, and if the former, whether the husband of the mother had consented.  Also, we touch on the issue of anonymity. 

The case is here

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1901.html

We have three players – M, who is the mother of the child, F who provided the gametes for the child’s conception, and H, the husband of the mother.  It is fairly to establish that M  is the child’s legal mother, but establishing who is the child’s legal father is a bit more difficult.

In essence, F was a man who was a sperm donor on a regular basis. Sometimes he did this by means of artificial insemination (AI), and sometimes by natural intercourse (NI).  It was factually agreed that F had been contacted by M and asked to assist with her fertility issue, and that some episodes of NI took place. The issues between the parties were these :-

1.       Was the event which led to the conception of the child, AI or NI ?

2.       Was the Husband in agreement with this?

Why is that relevant? The Court are clearly about to plunge into very delicate and sensitive matters and things are liable to get (excuse the phrase in this context) sticky.

Well, it is because when the Government decided to legislate and regulate the whole business of insemination done outside of the confines of a relationship or even one night stand, they brought into being the Human Fertilisation and Embryology Act 2008  (HFEA from now on)

Section 35 of that Act, provides (in very clinical language) that if a woman is married, her husband shall be the legal father of a child produced by artificial insemination with another man’s gametes PROVIDED that he consented to that insemination taking place.

If he did not consent, he is not the child’s legal father. And the donor of the gametes would only be the child’s legal father if he had provided the mother with a notice saying that he consents to be treated as the father of the child AND M has provided him with a notice that she agrees to that.  So, a child conceived by AI without the consent of the Husband  (H) or biological donor of the gametes (F) agreeing to be treated as the Father would have no legal father.

With me so far?

IF the child was conceived by NI, then the male participant would be the child’s legal father (but would not automatically acquire parental responsibility, unless he was registered on the birth certificate)

In this case, which was heard by Mr Justice Peter Jackson – who is rapidly becoming the “go-to” guy on difficult AI cases, the Mother was claiming that the conception had taken place as a result of NI, and that therefore F was the biological AND legal father. She was also seeking orders for financial support for the child from F, under Schedule One of the Children Act 1989.

It would be fair to say that the role of the Court became less one of determining which of F or M was telling the truth, but which of them, after sifting through the multiple lies that each had told, was the more credible in their overall account.  Given that F said the conception was by AI, and M said by NI, one of them must have been telling the truth about the circumstances, and it was, the Judge said, unfortunate that each of them had told so many lies in the proceedings.

These are the lies the Court found that M had told. (The names that I give are names that are within the anonymised transcript, and do not relate to the real names of M, F or H, or the child)

 

·  Examples of Ms M’s deceptions are these:

(1) Her opening e-mail to Mr F stated that she was healthy (she has a medical condition) and that Mr H was excited about donor insemination (he was against it but she hoped to bring him round).

(2) She told Mr F that she had miscarried his child, when she had in fact had a termination.

(3) Her ‘misdirected’ email to a girlfriend, deliberately sent to Mr F, is the work of a fluent fabricator.

 

 (4) Her use of the ‘Andy Hitchings’ name and e-mail account shows a capacity for determined and malevolent action to achieve her ends, and also demonstrates that she will use an alias when it suits her.

(5) I find that she wrote those ‘Andy Hitchings’ emails that she denies writing. Her criterion for accepting or denying authorship was no more than an assessment of the damage that the truth would do to her case.

(6) I find that she probably wrote the ‘Nicole White’ and ‘Edward Mason’ e-mails for the reasons given in Mr F’s opening submissions. She has had two years to prove that these people exist in the face of Mr F’s allegation that they do not, but she has made no attempt to do so.

(7) If I am wrong about point (6), the only plausible alternative is that Ms M conspired with one or more other persons unknown to pursue her campaign against Mr F.

(8) Ms M’s reason for keeping a transcribed log of text messages was that it was as a record for the child. This is unconvincing; a more likely explanation is that she kept the information as a form of insurance.

·  I found Ms M to be an unimpressive witness in relation to the above matters and to show no sign of discomfort when caught in an obvious lie. She freely stated that she is motivated by her own need for Mr F to be punished.

 

 

And then these are the lies that F told

·  Examples of Mr F’s deceptions are these:

(1) His calculating betrayal of his girlfriends, to whom he made promises that he was no longer engaging in sperm donation, and his unabashed dishonesty in concealing his overall activities from recipients with whom he entered into relationships.

(2) His casual untruthfulness on his website profiles about the number of children that he had fathered, lies that would only work to his benefit by disguising a level of hyperactivity that might have deterred responsible approaches.

(3) His deliberately misleading first statement, in which he trumpets the rules of the website as being ‘AI-only’ in an effort to create the impression that this was the case here, when in fact he had been engaging in and advertising sexual activity through the website for years.

(4) His untruthful evidence in these proceedings and to the CSA that he had not had sexual intercourse with Ms M until December 2010 or January 2011, when on his own case it occurred in October 2010.

(5) His gratuitously inaccurate statement that sexual intercourse with Ms M began ‘at her instigation’.

(6) His denial of certain text messages to and from Ms M, taking the same selective tactical approach as she has done.

·  As to the last matter, the log of text messages was produced by Ms M in an unsatisfactory form (allegedly transcribed in edited form from notes that no longer exist of texts that have been ‘lost’). Having exercised due caution in the light of Ms M’s general dishonesty, I nevertheless find that the record can be viewed as a reasonably reliable journal of this form of communication between the couple. The messages have the spontaneous and often inconsequential flavour of real life, are congruent with the content of the contemporaneous emails, and are in my view beyond even Ms M’s powers of fabrication. Moreover, had she wanted to invent evidence, she would probably have inserted some direct and unambiguous reference to sexual activity, but there is none. Many texts are accepted by Mr F, but only where they do him no damage.

·  Mr F’s evidence was clearly given, but he had clearly taken the strategic decision to tell the truth where possible and to lie where necessary. He at least conveyed some impression that he would have been more comfortable telling the truth if circumstances had not prevented it.

 

 

The Judge then had to weigh up, which of them on balance was telling the truth on the central issue of conception, taking into account that the burden of proof was upon M as the applicant

 

·  On the central question of the manner of this child’s conception, I have reached the clear conclusion that Ms M’s evidence is greatly to be preferred to that of Mr F. My reasons are these:

(1) Her account of the sexual activity is detailed and has been consistently maintained. It was unshaken during her evidence.

(2) As a straw in the wind, her answer to an unexpected question about what happened to the AI equipment after the first meeting (which was that she kept bringing but not using it) had the ring of truth.

(3) Allowing for the difficulty faced by any witness in breathing life into a denial, Mr F’s evidence on the issue lacked any real conviction.

(4) His new-found certainty that the first occasion of sex was in late October is inconsistent with his previous accounts and best explained by his having decided to sail as close to the wind as he could in terms of dates.

(5) If the first occasion of sex occurred in October it would have been at one address: if it was in December or January, it would have been at another, Mr F having moved in the meantime. A mistake about dates might be explained: a mistake about venue cannot be accounted for so easily.

(6) My findings about Mr F’s unreliability as a witness are of course relevant.

(7) While of no great importance, it would be a curiosity that the child was conceived by AI at a meeting that was the immediate predecessor of his parents’ very first sexual activity.

(8) The coy and flirtatious tone of their emails and texts from the start suggests that the couple’s relationship had swiftly progressed far beyond AI. The approach seems to have been to communicate in way that was not explicit, chiming with the wish to keep the affair hidden from their partners. Of interest, the tone of the texts and emails is no different before and after October 2010.

(9) I attach no real significance to the use of the term ‘donor’ by either parent when it is clear that this was used interchangeably in their minds for AI and NI. As Mr F put it, ‘I call it donation by sex or receptacle’.

(10) I reject Mr F’s case that a simple friendship and closeness developed between himself and Ms M arising from the intimate nature of AI. The sheer amount of time the couple spent together in a variety of private places from April 2010 onwards is a strong indicator that they were meeting for more than repeated AI.

(11) Mr H believed from an early stage that his wife was having an affair, and I believe that he had good grounds for thinking so.

(12) On the evidence, Mr F did not commonly engage in extended continuous asexual relationships with the women he met through the website. He has an unmistakable track record of inveigling or encouraging recipients into engaging in sexual activity with him from the very first meeting. Ms M’s account of Mr F making a pass at her during the first meeting is consistent with descriptions given by others. Of note, Mr F accepted that he had given her the option of AI or NI within minutes of their first meeting, which was highly inappropriate when she was a stranger who had come for AI.

(13) I accept that Mr F first became involved in licensed donation altruistically and even now, I do not discount a residual element of altruism in his make-up or forget that there are many much-wanted children alive today as a result of his efforts. However, I am clear that in relation to his website activity his mainspring has been to meet his own needs, at least at a sexual level. This is seen by his behaviour in 2007, when he advertised himself in graphic terms as willing to participate in a ‘breeding party’, i.e. a male-dominated orgy designed to get a woman pregnant, though there is no suggestion that he actually took part in such activity. Likewise, he referred in evidence to an occasion when he engaged in sexual activity with both members of a lesbian pair who had approached him via the website.

(14) The fact that Mr F is bound in his professional life by a clear code of ethics makes the risks he was taking the more surprising. His prolific sexual activity with recipients amounted to a brazen flouting of the rules of the website, such as they were. In one relevant period of 2-3 months alone, he was on his own account having sex with three women and providing AI to two others. Most of these contacts had to be kept secret from the other women involved. The sheer logistical challenge alongside his professional life will have been a burden that he would have been likely to have laid down if he had not been driven on by some degree of compulsion. He even kept up and refreshed a posting on a different website, from which he never received any custom over a period of years, and despite the volume of applications the main website was reliably producing.

(15) I reject Mr F’s case that Ms M main motivation is financial, but accept that much of her behaviour is explained by a desire to damage him in any way she can as a way of getting redress for his deeds and his lies.

 

Thus finding that F was the biological and legal parent of the child, the child having been conceived by natural intercourse.

 

Where things get really rich, was the application for costs

Ms M seeks an order that Mr F should pay her costs, while Mr H seeks an order that Mr F should pay his costs on an indemnity basis. Mr H’s costs, it will be recalled, come to £13,000 and Ms M’s to £81,000, of which £61,000 is publicly funded.

 

Well, I see some merit in H asking for it, but after those findings about the pack of lies that M told, asking for a costs order required some bravery. It wasn’t successful.

The issue of anonymity was touched upon, and it is relevant in view of the current debate and the last blog piece that I wrote. Underlining here is mine.

·  Prohibited steps application Mr F seeks an order in these terms:

1. No party may, without the permission of the court, disclose to any person other than their respective legal advisors any of the evidence, oral or written, which has been adduced during these proceedings.

2. No party may disclose to any person other than their respective legal advisors, close friends and family members, or medical professionals treating either themselves or the child any information relating to the circumstances of the conception of the child.

3. For the avoidance of doubt, paragraphs 1 and 2 of this order prohibit disclosure of any information covered by those paragraphs in any of the following ways:

a. By email to any person other than those included in paragraph 1 of this order;

b. By posting the information on any website or internet forum;

c. By publishing the information via Twitter, Facebook or any other social media;

d. By disclosing any of the information to any representative of the Press.

4. Other than specifically provided for in this order, any disclosure which would otherwise have been permitted by Family Procedure Rules 2010, r.12.73 or 12.75 is prohibited unless the party wishing to make such disclosure has obtained the permission of the court.

·  Mr F seeks this order to prevent what is described as prurient interest in the circumstances of the child’s conception. He points to the findings about Ms M’s past behaviour in relation to third parties as heightening this risk. He is anxious to protect his personal position, that of the child and that of third parties, including other children fathered by him. He fears that the financial proceedings may prompt Ms M to renew her public campaign against him.

·  Ms M, who initially appeared attracted by the idea of such an order, now opposes the application. She considers that she should be free to discuss such information or desist from doing so as she sees fit in so far as is otherwise permitted by law.

·  FPR 2010 r.12.73 and r.12.75 protect information arising from the proceedings, either by way of written or oral evidence, or by description of what occurred in court, but at the same time permit disclosure of information relating to the proceedings in defined circumstances, which do not include communication to the public at large. However, in the absence of a specific order, there is nothing to prevent anyone talking privately or publicly about matters that do not originate from within the proceedings: the mere fact that information arising independent of the proceedings is then referred to within the proceedings does not mean that it cannot continue to be spoken of.

·  In this case, Mr F applies for greater restrictions than those imposed by the rules. In balancing the interests that arise under Articles 8 and 10, I am clear that this is not a case in which it would be appropriate for the court to make an order of this kind. Looking at the matter from the point of view of the child, I doubt that the sort of transient publicity that might follow either of the parties speaking publicly would have any real effect on his welfare or of other children. This is not an encouragement to anyone, and in particular Ms M, to go to the press. On the contrary, all parties would no doubt be wise to desist from washing dirty linen in public, but that is a matter for them, and not for the court to regulate in the circumstances of this case. I am not influenced by Ms M’s change of stance: had the parties been united in the application, I would still have refused it.

 

And thus the judgment is published, with names anonymised, with the standard rubric (see the last blog post) about anyone wishing to make use of the judgment having to do so on the basis that no information leading to the identification of the parties will be provided.

 

I know that some of my readers, and some of the media, and population at large, take the view that anonymising the judgments is a step too far, and that the names should just be made public save for the most drastic of circumstances.

 

But imagine, if you will, that this judgment, which is up online and can be viewed by anyone who looks for it, named the child, F, M and H, giving their real names.  Anyone in the child’s social circle could read it now or in the future, and know the whole grisly story of the conception and the lies , manipulation and deception that both of his biological parents were involved in. And could tell the child that , or tease or bully the child with that information. Imagine you are the child, and ten years hence you type your name into Google, and THIS judgment is what comes up.  And you see your mother’s name, and the name of her husband, who you thought was your father?

 

This is of course, nowhere near the worst things that are contained within family court judgments; and it is for that reason that I would support publication of anonymised judgments (hopefully with some clear guidance on what can or can’t be done with them) but not for the routine naming of those involved.

cuckoo

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