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Breastfeeding mother versus gay couple

 

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

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

Re H v S (surrogacy agreement) 2015.

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

 

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

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

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

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

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

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

Ms Justice Russell said this:-

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

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

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

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

 

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

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

 

 

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

 

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

 

Oedipus Wrecks

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

 

Re B v C (Surrogacy : Adoption) 2015

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Under section 54 of the HFEA 2008 in situations where a child has been carried by another woman a parental order can be made by the court, this provides for a child to be treated in law as the child of the applicants. However, all the requirements under section 54 have to be met, one of which is that there have to be two applicants who are either married, civil partners or are ‘two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.’ (Section 54 (2)). A single person is therefore unable to apply for a parental order.

 

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

 

 

With me so far?

 

Here is the tricky part.

 

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

 

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

 

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

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

(2) The steps are—

 

 

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

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

(c) offering to find a child for adoption,

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

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

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

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

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

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

 

 

 

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

(4) The condition is that—

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

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

 

 

Conjurers and children’s birthday parties

 

The decision of the President in Re X (a child) (surrogacy : Time limit) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/3135.html

 

This was a case where the commissioners of a surrogacy arrangement were late getting their application for a Parental Order before the Court.

 

That caused them to fall foul of

s54(3) of the Human Fertilisation and Embryology Act 2008

 

 

 

“the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

Although it seems that there is very little mischief (and Parliament never said why they wanted a 6 month cut off date), the Courts have previously interpreted this pretty plain English provision in the ordinary plain English sense of the word – if you don’t get your application in before the Court before the child is 6 months old, you can’t have your order.  (Parliament did not give the Court a discretion here to perhaps allow an application with leave, or allow extenuating circumstances, or to permit the Court to make the order of its own motion notwithstanding that there was not a valid application)

It has been one of those bits of law that is just, if you are too late, tough luck.

 

That was, until the President got one of these cases. I have to say that everyone involved clearly worked hard to achieve a legal framework in which the Court could make a Parental Order, that clearly being a better order for the child involved than anything else that could be come up with.   (My personal view on it is that “must” is as clear as can be, and that whilst I support the aim to soften that into a judicial discretion, I think its going beyond the scope of the separation of powers. I would personally, have been happier with a Judge saying that in a case of this kind, the Act is incompatible with article 8 and that Parliament should look at the wording again to GIVE a discretion for exceptional circumstances)

 

That said, I think the way around it is clever, and there’s nobody better at making words behave as he tells them than the President.

 

This is the thrust of it.  Where Parliament uses a mandatory form of wording, but doesn’t set out what the consequences are if that mandatory form of wording isn’t followed, is there an implicit discretion?

 

 

  • The second strand in the argument put forward by Ms Isaacs and Mr Maynard is based on the long line of cases of which the decision of Lord Penzance, sitting as Dean of Arches, in Howard v Bodington (1877) 2 PD 203 is usually taken as the starting point. Lord Penzance said this (pages 210-211):

 

“The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence if it is not done? In the case of statutes that are said to be imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end. Now the question is, to which category does the provision in question in this case belong?

… I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

 

  • Down the years a vast jurisprudence developed around the imperative / directory dichotomy. There is no purpose to be gained by entering into this morass, for the dichotomy has fallen into disfavour in recent years: see the historical analysis by Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, paras 15-22.
  • Lord Steyn identified what he called the core problem (para 14):

 

“A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.”

He concluded (para 23):

“Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead … the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.”

In applying that approach in the particular case Lord Steyn adopted (para 24) what he called “a purposive interpretation” of the statute in question.

 

 

That is not terribly simple stuff, even for law geeks, so I am grateful that the President gives a practical example

 

 

  • Lord Rodger of Earlsferry illustrated the point with a striking example (para 30):

 

” … if your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later. In the present cases Parliament has placed the court under a duty, where appropriate, to make a confiscation order before it sentences an offender. If the court fails to do so and proceeds to sentence the offender first, does Parliament intend that – like your daughter – the court should remain under a duty to make the order? Or does Parliament intend that the duty should be limited so that – like the conjuror – the court can perform it only before sentencing?”

So, is s54(3)’s “MUST apply for the order during the period of six months after the child is born”  like your daughter being in after eleven (in which case you would not be happy, but you’d still let her in the house i.e make the order)  or is it like the conjuror booked for a birthday party turning up a week late, in which case he doesn’t get paid (and you don’t hear the application?)

I’d still say that it was the latter. I don’t know why Parliament put a hard cap on the time limit, or what the mischief was, but if they had wanted to give a Judge a discretion to hear the application out of time, it would have been a really simple clause 54(3) (b) addition  “SAVE THAT a Court may grant leave for the application to be heard out of time if the Court considers it necessary to do so”.

As I’ve remarked before, if you are before the President and he finds a clever way of doing something, you should bet heavily on him doing it. I can’t recall a judgment where he says “It would be possible via very clever prestidigitation to do X, but I am not going to do X”

  • Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about Xs identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.
  • Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day’s delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical. It is, after all, easy to imagine far from fanciful circumstances in which the application arrives too late: the solicitor misunderstands section 54(3) and excludes the day on which the child was born from his calculation of when time runs out; the solicitor’s legal executive is delayed by a broken down train or a traffic jam and arrives at the court office just after it has closed; on the way to their solicitor’s office to give instructions the commissioning parents are involved in a car crash that leaves them both in a coma from which they recover only after the six-month period has elapsed. Why should they be barred? Even more to the point, why should the wholly innocent child be barred by such mishap? Let it be assumed, though in truth, and with all respect to her, this is little more than speculation, that the underlying policy is that identified by Eleanor King J in JP v LP and others [2014] EWHC 595 (Fam), namely to provide for the speedy consensual regularisation of the legal parental status of a child’s carers following a birth resulting from a surrogacy arrangement; that policy surely does not require section 54(3) to be read as meaning that any delay, however trivial, is to be fatal. One can see why Eleanor King J was concerned that there should not be what she referred to as delay over “a protracted period”, but that is a different point.
  • I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that “the court may make an order … if … the [relevant] conditions are satisfied.” I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.
  • I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.

 

As I think I’ve conveyed, I’m no big fan of s54(3) and if Parliament were to amend it to add a clause (b) giving judicial discretion to allow an application out of time, I’d be delighted.

I’m not terribly delighted about a judicial decision that reads ambiguity and discretion into a perfectly unambiguous clause. The commissioning parents in this case did not make their application one day late. They realised too late that the statute applied and were already out of time (but “ignorance of the law is no excuse”)  and now the application is thirteen months out of time.

  • Having got thus far in the analysis, the remaining question is whether in the present case the commissioning parents are to be allowed to pursue an application made some two years and two months after X was born. In my judgment, they are.
  • This period in fact falls into two parts: first, the period from December 2011, when X was born, until July 2013, when Judge Hindley first drew attention to the significance of section 54; second, the period thereafter until the application was issued in February 2014. In the particular circumstances of this case, the latter period, in my judgment, properly falls out of account. Until Ms Isaacs suggested otherwise in January 2014, everyone – the parties’ legal advisers and the judges dealing with the case – were agreed that section 54(3) presented an insuperable obstacle. And that was hardly surprising given the decisions of Hedley J and Theis J referred to in paragraph 21 above. So the true focus must be on the period of thirteen months delay from June 2012, when the six month period expired, until the hearing before Judge Hindley in July 2013.
  • In one sense that is a long time, both in absolute terms and when compared with the statutory time limit of six months. And it is a very long time indeed compared with the matter of a few days that were fatal to the appellant in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156. But principle demands that I have regard to the statutory subject matter, the background, and the potential impact on the parties if I allow section 54(3) to bar the application. I repeat in this context what I have already said in paragraphs 54-56 above. There are, without labouring the point, three aspects of a parental order which very obviously and very fundamentally distinguish it from the kind of case which the court was concerned with in Adesina. The first is that a parental order goes not just status but to identity as a human being. The second is that the court is looking, indeed is required by statute to look, to a future stretching many, many decades into the future. The third is that the court is concerned not just with the impact on the applicant whose default in meeting the time limit is being scrutinised but also with the impact on the innocent child, whose welfare is the court’s paramount concern. In these circumstances the court is entitled, indeed in my judgment it is bound, to adopt a more liberal and relaxed approach than was appropriate in Adesina. After all, as Maurice Kay LJ recognised in Adesina, what the court is required to do, albeit it is required to do no more, is to secure compliance with the Convention. I would not be doing that if I were to deny the commissioning parents and X access to the court.
  • I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.

 

 

I would add this one to the ever growing pile of “Presedents”   -(phrase coined by Celtic Knot) and see these two blog posts by Lucy Reed http://www.pinktape.co.uk/rants/who-to-follow-the-precedent-or-the-president/  and David Burrows http://dbfamilylaw.wordpress.com/2014/09/23/clarity-in-law-precedent-law/

 

Of course our legal history is steeped in the tradition of Judges pushing language very hard to achieve an equitable outcome – I was probably the only person in my law class at college who thought that Lord Denning was in the wrong when he did this sort of thing. The President here has done the right thing for this family and this child, and I am probably being churlish in grumbling about it.  But I hope we are not setting a precedent that a Parliamentary use of “must” is really just a jumping off point for negotiations…

Overseas surrogacy

I have written a few pieces about overseas surrogacy this year , which probably reflects that more of these arrangements are being made, or at least that more of them are going wrong.

 

https://suesspiciousminds.com/2014/04/29/surrogacy-arrangements-made-overseas/

about  a commercial arrangement with the Kiran agency to have a surrogacy in India.  (I would urge some careful research before you pick your agency in India)

 

and

 

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.

 

 

 

yet more international surrogacy

 

This time, Re D (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2121.html

 

This case was heard in the High Court, by Moylan J

 

 

  • This case provides a clear example of the difficulties created as a result of surrogacy arrangements being subject to varying degrees of domestic regulation, from significant regulation to none at all, and also because of the existence of significant differences in the effect of such domestic regulation. There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.

 

 

 

  • These proceedings concern a young boy called D who was born in 2010. He was born in the Republic of Georgia as a result of a commercial surrogacy arrangement, using eggs from a donor and the First Respondent’s sperm, which took place at and through a clinic in Georgia.

 

The particular wrinkle in this case was whether the surrogate mother was married at the time of this arrangement. Because if he was, under English law, he would be the child’s legal father, leaving the ‘commissioning father’ the genetic father, but having no legal rights about the child.

 

  • By virtue of section 35 of the HFEA 2008 the answer to the question, “Who is the legal father?”, depends on whether the surrogate mother was married at the relevant time. Section 35(1) provides:

 

 

“If – (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and;

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

Section 35(2) provides:

“This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).”

 

  • Section 48 of the HFEA 2008 provides that where, by virtue of the provisions of the Act, a person is to be treated as the mother, father or parent of a child,

 

 

“that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes”.

Section 48(2) provides the converse, namely that where, by virtue of the HFEA 2008, a person is not to be treated as a parent of the child,

“that person is to be treated in law as not being a parent of the child for any purpose”.

 

 

The surrogacy and insemination was managed through a clinic, whose director is named MK in this judgment. MK sadly gave two rather different accounts of the surrogate mother’s matrimonial status

 

 

  • When the mother and MK went to the British Embassy in Georgia on 5th January 2011 MK informed the consular official that:

 

 

“The surrogate mother is divorced and was divorced before she entered into the surrogacy arrangement. There are a further five surrogate mothers waiting to deliver their babies in February/March all destined for the UK.”

On 30th December 2011 MK sent an e-mail to the mother’s solicitors in which she said:

“As for surrogate mother, yes, she is and was legally married. She is married also now. We have holidays here until January 3rd and then I will send official letter to public registry and obtain the proof that the surrogate mother is and was legally married, also request copy of her marriage certificate.”

[On version 1 the ‘commissioning man’ who provided the gametes was the genetic father and legal father, on version 2 he was only the genetic father. You absolutely don’t want any doubt about this issue, but the doubts just got worse]

In an e-mail dated 5th January 2012 MK said:

“Also one more important issue. Surrogate signed a contract with us claiming she was single. This was declared to the UK Embassy but very recently we became aware that the surrogate was married. I went to the UK Embassy with the mother to declare the surrogacy but I do not think this is problematic because some of our UK citizen surrogate mothers were married but UK law regulates this and none of our former potential parents has any problem because of this. You can check same in UK Embassy.”

On 20th February 2012 MK said that they had been unable to find the surrogate mother.

  • On 15th October 2012 MK said that the surrogate mother:

 

“Was either divorced or single. We do not match married surrogates to UK couple but we cannot provide any proof as we do not have any further link with her and only she can obtain proof of her marital status from public registry.”

The fact that only the surrogate mother could obtain proof of her marital status from the public registry was subsequently confirmed by the detective agency. In another e-mail of the same date, 15th October 2012, MK said:

“Paperwork was completed and D was granted papers to go to UK. At the time the surrogate mother has declared that she was single. We were later to be informed she had, indeed, been married.”

And then a bit later:

“I had a declaration (just my team member reminder) that surrogate mother was single when she signed and was given to the Embassy.”

In answer to the question as to whether she had any more information, MK said nothing more.

[I think that this Judge was very kind in not naming the agency or MK. Well, kind to them. Not so much to people who are wanting to enter into a surrogacy arrangement and might want to avoid complications, doubts and costly litigation down the line…]

Determination

  • Turning now to my determination, the evidence in this case, on the issue of whether the surrogate mother was married at the relevant time, is clearly not satisfactory. The only person able to give direct evidence is MK and she has refused to provide a statement. She has said, at different times, that the surrogate mother was single, married and divorced. I do not consider that any greater weight can be given to MK’s e-mail of 30th December 2011 than her other statements, which were either also provided to the mother’s solicitors or to the consular official at the British Embassy. These were, as I would describe them, equally official statements.

 

  • The mother’s evidence is inevitably unclear, based, as it is, on what she was told by MK or the impression she gained from MK.

 

  • In my view, the evidence does not establish that the surrogate mother was married at the relevant time. The evidence is not sufficient to enable me to come to that conclusion on the balance of probabilities. Indeed, in my view there is considerable doubt as to whether the clinic provided accurate details as to the identity of the surrogate mother. It is notable that the clinic has failed to provide its contract with the surrogate mother, although this may be explained by being unwilling to reveal the terms of that contract.

 

  • I propose, very briefly, to outline the orders agreed by the parties. In their position statements the parties were seeking different solutions. Those being addressed were adoption, special guardianship and shared residence. The mother sought either an adoption order or a special guardianship order. The father, in an extremely balanced statement, sought a shared residence order. The Local Authority supported the making of a special guardianship order. The guardian did not support the making of either an adoption order or a special guardianship order, having regard in particular to the effect those orders would have on the parties’ respective positions as parents. The guardian’s recommendation was that both parties should have parental responsibility and that there should be a shared residence order.

 

  • The parties, through sensible discussions, have agreed on a structure which follows that made by King J in the case of JP v LP & Ors [2014] EWHC 595 (Fam), including that D should remain a ward of court and that there should be a shared residence order. As I said at the beginning of this judgment, I am entirely satisfied that the proposed orders are in D’s best interests and, accordingly, at the request of the parties, I make such orders.

 

Go to Court on an egg

 

 

[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.

 

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

 

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.