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Tag Archives: international surrogacy

Guidance on foreign surrogacy

 

Yet another High Court decision about international surrogacy.

 

Re Z (Foreign Surrogacy:Allocation of work: Guidance on parental order reports) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/90.html

 

This one throws up a lot of the issues that can go wrong with international surrogacy. The arrangements were all made, properly and legally in India. The commissioning ‘parents’ then found it impossible to come back to England with the twins until they had a Parental Order. But they in turn found it difficult to get a Parental Order, because there was uncertainty about whether the applicants needed to be present in England at the time of the application, whether the child’s ‘home’ had to be in England, and whether the parental order reporter had to go to India to observe the ‘parents’ with the child. In fact the parents had to leave the twins in India, deal with matters in Court and then get the twins from India, a sorry state of affairs.

 

Ms Justice Russell cuts through a lot of this with the guidance that applications for Parental Orders with an international element (where child is born outside of England and Wales) should henceforth be heard only in the High Court. They are also to be heard in London, where possible by Pauffley J, Theis J or Russell J, all of whom have been at the forefront of the most challenging cases of this nature and are well placed to resolve difficult issues.

 

 

  • Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

 

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child’s place of birth was outside of England and Wales should be allocated to be heard by a Judge of the Family Division.

iii) In London all cases should, if possible, be allocated to Mrs Justice Pauffley, Mrs Justice Theis or Ms Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a Judge of the Family Division identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs Justice Theis).

v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below).

 

  • The President has seen paragraph [73] and has approved it.

 

 

On the particular issues that arose in this case :-

 

  1. Do the parents need to be physically present in the UK to apply?    No, they just need to be domiciled here.
  2. Does the ‘home’ with the child need to be in the UK?  No, and also it does not matter that the time the children were in a home with the applicants was not continuous. It needs to be at the time the application is made and again at the time that the order is made.

 

The child’s home must be with applicants at the time they made the application (Section 54(4) (a) HFEA 2008) and at the time the court is considering making the order. Although the twins had remained in India and at times were not being cared for there by the Applicants there was no issue in this case as the place the children were living was a home that was entirely arranged and provided for by the Applicants; moreover the commissioning father had returned to India in February and remained with the children until the whole family came to the UK in May 2015. Either or both the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man (sub-section (4) (b)). Domicile can be problematic in some cases as it is a peculiarity of English and Welsh law which is often confused with residence by applicants acting in person (and others). This was the matter with which the court was concerned in the case of Re G referred to paragraph 2 above. In the instant case, however, there was no such problem as both Applicants were born in England to fathers domiciled here and there was no evidence to suggest that they had not retained their domicile of origin. They were both over eighteen years old at the time the order was made and so meeting the requirements of s 54(5) HFEA 2008.

 

3. Does the parental order reporter, who carries out an investigation and reports to the Court need to see the applicants WITH the child?  This seems obvious, but of course in a situation like this that would have involved the reporter (who no doubt has a heavy workload and an organisation not flush with cash) flying out to India.   The answer is longer than the other two, but ultimately ‘yes’

 

 

Parental Order Report

 

  • The children’s guardian was prepared to consider making recommendations without having seen the children in the care of the Applicants in the UK in the exceptional circumstances of this case. She made it plain to the court that this was not her preferred option and it was her assumption that she needed to see the children at home with the Applicants. The only reason that Ms Dawe felt able to consider such a course was because there was what she described as “wealth of material” about the Applicants’ ability to parent K and the support that was available to the Applicants from their wider families. Ms Dawe accepted that parenting three children is different to one but was so concerned about the welfare of the babies stranded in India that she felt that it was an appropriate course for her to take. The role of the Cafcass officer/Cafcass Cymru/Parental Order Reporter and the extent and nature of their investigations was one issue in this case that I specifically sought assistance upon from Cafcass Legal and I am grateful to them for that assistance.
  • A specific issue raised in this case was whether it was necessary for the child or children who are subjects of applications for parental orders under s54 of the HFEA to be seen by the Parental Order Reporter for the welfare report to be properly prepared. The Human Fertilization and Embryology (Parental Orders) Regulations 2010 does not incorporate section 42(7) of the ACA 2002 which require a privately placed child to be seen by the Local Authority together with their adopter in their home, and the Explanatory Memorandum to the Regulations makes no reference to any such requirement. For the purpose of cases of international surrogacy it sets down the following about the acquisition of nationality or citizenship:

 

“Nationality

8.7. As a result of responses to the consultation, and to ensure parity with adoption legislation, the Parental Order Regulations 2010 now ensure that where a parental order is made in the United Kingdom and one or both of the commissioning couple are British citizens, the child – if not already so – will become a British citizen.”

 

  • The Court was referred to the Cafcass Guidance issued to Parental Order Reporters at the hearing on 18th May 2015. This guidance did not require in terms that the parental order reporter sees the child, but since that guidance was issued, further work was undertaken within Cafcass as a result of which fact-sheets were produced for commissioning parents who are applying for parental orders and in the fact-sheet entitled “Parental Order Reporters” intended applicants are told that they will be seen by the parental order reporter with their child (my emphasis). These documents or fact-sheets were only just published within a few weeks of the final hearing of this case on 7th July 2015.
  • Ms Penny Logan of Cafcass Legal, who appeared before me and Ms Lakin, counsel on behalf of the children, both told the court that they were unaware of a case that had been reported where the parental order reporter has not seen the child. This was accepted by Ms Cronin on behalf of the Applicants. Ms Logan pointed out, and as this court is well aware, members of Cafcass Legal routinely act for High Court team guardians in cases where the children are parties. The court was reminded of the fact, well known to it, which is that the High Court team undertakes a large proportion of the parental order cases in the High Court and most of the international ones. Ms Logan told the court that she was unaware, through Cafcass, of any case reported or unreported, where the parental order reporter has not seen the child. Although this court is aware of one such instance in a reported case (see the reference in [86] below) it is difficult to imagine circumstances in which a parental order reporter could properly report on welfare without having seen the child with the Applicants. Ms Logan went on to inform the court she was, at that time, involved in another surrogacy case where determination of the application hade been delayed for a year for similar reasons.
  • It is accepted that it was never the preferred option of the guardian in this case that she would make recommendations in the absence of seeing the children with the Applicants in the UK. It is the experience of this court that applications for parental orders are made by commissioning parents who do not presently reside in this country (when one or both have a UK domicile). In such cases parental order reporters see children with commissioning parents/applicants when they visit this jurisdiction as in the case of CC v DD (supra) [2014] EWHC 1307.
  • In the instant case the guardian’s report amply demonstrates both the value and necessity of such observations in terms of the analysis of the welfare checklist set out in s.1 ACA 2002. While it would have been a matter for the court as to whether it would have made the order in the absence of this work in the circumstances of this case; I took the view that the parental order reporter had to have seen the children with the Applicants before the court could be satisfied about their welfare.

 

 

 

 

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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.

 

Surrogacy arrangements made overseas

 

Re WT (A child) 2014

 

In a situation where a childless couple want a child, sometimes the search is cast very far and wide. At the early stage of the internet, there was outcry in Britain about the Kilshaws, a couple who purchased a baby on the internet from America. That led to the creation of legislation about overseas adoption and in turn surrogacy arrangements.

In this country, there are clear restrictions about surrogacy, and the amount that can be paid to a woman to have a baby on your behalf (it has to be expenses only) and as the High Court recently pointed out in JP v LP and Others 2014, there are criminal offences associated with any actions that are dealing with surrogacy on a commercial basis (even as an intermediary, or in that particular case as a solicitor charging for drawing up documents to make the arrangements as watertight as possible)

 

 

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

 

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.

 

 

On a strict interpretation of that section, even doing the research about surrogacy and giving it to your client by way of advice can fall foul of that, if you then charge them for it s 2 (1) (c)   – it actually looks like not only is the solicitor committing an offence for charging, but the client also for asking them to do it and offering to pay for the advice…

[That might cause a problem with some of the guidance given by the High Court in this case that people contemplating overseas surrogacy should seek specialist advice first]

There are slightly more complicated provisions when the surrogacy is commissioned from a woman living in another country, and that is what Re WT is all about.

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1303.html

 

In that case, two people sought through an agency – the Kiran infertility centre (which immediately  rang a not entirely positive-sounding bell with me… more later) to commission a woman in India to have a baby on their behalf.

 

The baby was conceived by using the male’s gametes artificially inseminating the woman in India (the use of gametes or an egg or embryo is from one of the commissioning couple what makes it surrogacy rather than an adoption that is paid for) . That woman is named SA in the judgment.

 

The couple paid the sum of $28.000 dollars to the Kiran infertility centre. The biological mother, SA, received 350,000 rupees   (the judgment never actually does the currency calculation, so I will. The woman received roughly $5,800 dollars, leaving the clinic with $22,200. )

 

The couple then made an application for a parental order in the UK, this being what would make them both legally the parents of this child.

 

As the Court carefully point out, such an application HAS to be made within 6 months of the child’s birth – the Court has no power to extend that time-limit. If it isn’t made in time, the Court can’t consider the application.

 

In order for the Court to make the parental order, one of the issues that they need to consider is the consent of the mother – that has to be given at a period after the first six weeks of the child’s life (as an insurance that the decision is not being made at an emotionally vulnerable time, when hormones are having a significant sway on emotions and decision-making)

 

The clinic were less than helpful in getting the evidence about the mother’s consent

The parental order application is dated 14 March 2013. I have dealt with the four directions hearings prior to the final hearing on 4 March 2014. The main concerns I had on the information that was available when the matter first came before me can be summarised as follows:

(1) all the documents signed by SA were in English, including importantly the consent Form A101A. There was no information available as to whether she spoke English, was literate or had had the documents read through and interpreted for her;

(2) the applicants had not met SA and were unable to provide any information about her first language or her level of literacy;

(3) the enquiries they made with the clinic to seek clarity about the circumstances in which SA signed these documents were not responded to by the Clinic in a helpful or constructive way;

(4) the attempts to locate SA at the address on the documents were unsuccessful as the address given by the clinic for her covered a very large area;

 

Because of these issues, the couple sustained considerable additional costs in obtaining better evidence about the mother’s consent, and the judgment is critical of the clinic

The Clinic in this case has not always been helpful in the way it has responded to reasonable requests made on behalf of the applicants, often such requests were following specific directions made by this Court. They were given the opportunity to make representations to this Court but have not done so. Delay was caused as the Clinic insisted on being sent hard copies of the letters requesting information and consent from the applicants to do so. The Clinic makes the fair point that it is not in their interests not to help their clients obtain parental orders. Some of the documents signed by SA appeared to be in a standard form and contained provisions that were not accurate, or were not completed. For example, the ‘Agreement for Surrogacy’ signed on 29 December 2011 contained a provision which stated ‘I have worked out the financial terms and conditions of the surrogacy with the couple in writing and an appropriately authenticated copy of the agreement has been filed with the clinic, which the clinic will keep confidential’. The applicants said they had had no contact with SA in writing and were not aware of any agreement being filed with the Clinic prior to the Agreement for Surrogacy.

 

Eventually, the couple were able to provide the evidence that satisfied the Court that mother had given free and informed consent. The Court was also satisfied that the couple were able to offer the child a good and loving home and that making the parental order was the right thing to do.

 

The Court then looked at the payments – the Court has to retrospectively  authorise those payments under s54(8) when making the parental order.

As the judgment shows, the public policy reasons for this are strong – if the payment is too low, there is a risk that the mother is being exploited, if too high there is a risk that her decision has been swayed by financial considerations. It is also clear that the Court has jurisdiction to look at payments made to the foreign agency   (remember, if you were running a UK surrogacy agency, it would be illegal to charge money for ANY of your services)

Turning finally to the question of payments under s 54(8). Whilst the focus of the court’s consideration is on payments made directly or indirectly to the surrogate mother, it is clear from cases such as Re C [2013] EWHC 2408 (Fam), the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions require authorisation by the court, insofar as such payment cannot be considered to have been for expenses reasonably incurred.

The applicants have produced a part breakdown of the payments they made totalling almost $28,000. The breakdown given appears incomplete: $11,675 was paid when they registered with the clinic in May 2011 followed by 6 payments of $2,500 between March to October 2012. There are then some one off items listed as post birth administrative fees ($245), notary fee ($260), SA’s travel expenses ($350) and courier charges ($45). No other breakdown of how the sums paid to the Clinic is given, despite requests being made to the Clinic to do so. The Clinic’s unhelpful response to such a request is as follows ‘payments made to clinic for the entire surrogacy process are available with your clients’. If that was the case the request to the Clinic would not have been made.

The applicants had no direct dealing with SA. The only information they have regarding payments made to her are the documents signed by her that confirm she received 3,50,000 R’s. In a subsequent email from the clinic dated 3.1.14 they confirmed that SA was not required to pay the caretaker or Dr Sekhar out of the monies she received and SA in her meeting with the Ms Baria confirmed she received 3,50,000 Rs. This level of payment to the surrogate is the same as authorised in D & L [2012] EWHC 2631 (Fam) [2013] 1 WLR 3135 which concerned the same clinic.

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.

I am entirely satisfied the applicants have acted at all times with good faith and without moral taint. They took great care to select the clinic they used, undertook extensive research and enquiries and also formed their own judgment when they visited the clinic. They have displayed independent judgment by not always following the advice of the Clinic, for example which FRRO to secure the exit permit from. There is no evidence to suggest they have been otherwise than honest and candid in all their dealings with the Indian and UK authorities and have complied with the directions of this court. The amounts paid to the Clinic were set by the Clinic in a jurisdiction where commercial surrogacy is not unlawful. The amount paid to SA was not negotiated by them, appears to have been fixed by the Clinic, is the same as a previously authorised payment approved by this Court and is not dissimilar from payments made in similar surrogacy arrangements in Indian clinics. There is no evidence to suggest SA did other than freely consent to the surrogacy arrangement.

In those circumstances the payments made other than for expenses reasonably incurred are authorised by the court

The Court are of course in a bit of a bind here, and that’s hinted at here. Where the Court think that the couple have behaved properly, but that the fees were too high, their only sanction is to refuse to retrospectively approve the payments. But the money has already been spent, so what good does that do? Ultimately, the Court have the power to not make the parental order if they feel that the couple have improperly “bought” the child, but in a case like this where one might feel that they have been ripped off, there’s nothing the Court is likely to be able to do for them.

 

[There’s also, for me, a grey area as to whether when considering whether the payments are so grossly disproportionate that they shouldn’t be allowed, as to whether the Court is looking solely at what the couple pay or what the biological mother receives, and compare that to the value of the money in both countries. It is possible, I don’t know, that $5,800 is not a grossly disproportionate amount here, but in another country that sum of money might compare extremely favourable to annual income]

 

And you will see from the reference to D and L (Minors Surrogacy) 2012 that I was right to recall Kiran Infertility Clinic

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2631.html

 

In that one, the clinic didn’t get an address for the biological mother, causing huge problems in evidencing their consent. If you read my piece on that at the time,

 

https://suesspiciousminds.com/2012/10/01/be-my-be-my-baby/

 

you might remember this particularly telling feature

 

At that stage, they had still to receive any signed consent from the surrogate mother. They made further requests to the director of the clinic, to no avail. On 13 September, the first Applicant emailed a long letter to the director, setting a deadline for the production of the signed consent, and warning that if the documents were not supplied, they would make formal complaints to the authorities in India and the British High Commission. On 16th September, the Applicants received a DHL package, purportedly from the director of the clinic, containing a single sheet of paper on which was printed an obscene gesture

 

 

As I’m not charging anyone who reads this blog any money, I can give my advice about surrogacy without breaking the criminal law. My advice is, read these judgments and shop around before you decide which agency to use.

 

The Court go on to give some general advice to couples contemplating surrogacy with an overseas woman

 

As can be seen from what I have detailed above this application has not had an easy journey to the final hearing. Adopting the words of Hedley J in the first reported foreign surrogacy case heard over 5 years ago Re X&Y (ibid) paragraph 2 ‘..the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest.  The court shares their [the applicants] hope that their experiences may alert others to the difficulties inherent in this journey.’

Having dealt with a number of these cases, many of which involve unrepresented applicants, it may be helpful to highlight the areas that cause most difficulty in these cases:

(1) Those who embark on surrogacy arrangements abroad need to be alive to the pitfalls there can be with such an arrangement and it may be wise for commissioning parents to consider taking specialist advice at the earliest opportunity, both here and in the jurisdiction where the arrangement is entered into. To proceed in the absence of such advice can lead to significant emotional and financial hardship and further delay.

[As I commented at the outset, charging for such specialist advice is not as straightforward as one might hope]

(2) It is critical that an accurate documentary account of the various steps is kept by the commissioning parents so it can be available, if required, in support of a parental order application to assist in satisfying the relevant criteria under section 54. This is particularly relevant when considering any payments made and what, if any, are caught by the provisions of s 54(8). What is most helpful for the court is a schedule setting out the payments made and what they were for.

(3) A parental order application has to be made within six months of the child’s birth. There is no power vested in the court to extend that period. The recent decision of Mrs Justice Eleanor King in JP v LP and Others [2014] EWHC 595 (Fam), although in the context of a domestic surrogacy, is a timely reminder of the legal complexities if such an application is not made in time. Parental orders change parental status permanently, extinguishing the parental status of the surrogate mother entirely (and her husband, if applicable). Such orders confer legal parenthood and parental responsibility on both applicants for such an order.

(4) The requirement for the surrogate mother (and her husband if she is married) to give consent freely, unconditionally and with full understanding of what is involved is a fundamental part of the s 54 criteria. Depending on the circumstances the commissioning parents may need to consider meeting the legal fees for the surrogate mother, limited to taking advice on the consequences of a parental order being made. The cost of such advice is likely to be considered an expense reasonably incurred. In addition, it is clearly essential there is evidence to demonstrate (if required in the circumstances of the case) that any document signed by the surrogate mother is understood by her and, if necessary, translated into her first language before she signs it. Again, any costs incurred for this are likely to be considered an expense reasonably incurred.

(5) In this case the applicants were not able to meet the surrogate mother which in the Court’s experience is relatively unusual. If they had met her they may have been able to provide helpful information to the Court. In the event commissioning parents are not able to meet the surrogate mother they should seek to establish clear lines of communication with the surrogate mother, and ensure she is made aware during the pregnancy that she will need to give consent at least six week after the birth.

 

I wish this couple the very best of luck with their child, and it is a shame that so much additional cost and stress was caused to them in this process. They chose their UK lawyers very wisely in this case, in my humble opinion, and were in the best possible hands.