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Can a single person apply for a Parental Order in a surrogacy situation?

Posted on September 8, 2015 by suesspiciousminds

 

 

Parental orders are governed by section 54 of the Human Fertilisation and Embryology Act 2008. There are a few mandatory requirements set down by the Statute.

 

The application must be made by a couple. The application must be made within 6 months of the birth. At the time the order is made, the child’s home must be with the applicants. There must not be money changing hands save for reasonable expenses.  [I note in this case that some $45,000 dollars changed hands, which on the bare Act would not be permissable, but the Court never seem to have any problem with this any longer]

 

The Courts have, in recent months, been willing to grant exceptions to most of these mandatory stipulations and find their own wriggle-room, notably the President who when deciding whether the wording here:-

 

 

54 (3) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

 

meant that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born, instead gave this an interpretation of ‘or if not, you know, whenever’    [It was all done very elegantly and intellectually, but there is no good way to actually rewrite section 54(3) following that decision other than by simply striking a line through it, and for me, I don’t think Courts should be striking a line through bits of statute that they find inconvenient]

 

So in this case, the Court was asked to consider whether a parental order could be made on the application of a single person.

 

Re Z (A child : Human Fertilisation and Embryology Act 2008 : Parental Order) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/73.html

 

Decided by the President, who opens it with such a good paragraph I almost wish he’d left it there

When section 54(1) of the Human Fertilisation and Embryology Act 2008 provides that in certain circumstances the court may make a parental order on the application of “two people”, is it open to the court to make such an order on the application of one person? Can section 54(1) be ‘read down’ in accordance with section 3(1) of the Human Rights Act 1998 so as to enable that to be done? These are the questions raised for decision here. In my judgment the answer to each question is clear: No.

 

{I agree with the President here. I think he was wrong in the previous case, and that there’s only one sensible interpretation of s54(3) and that is that the six months is a cut-off point for making the application (and hence making an order)  }

 

The applicant put up a very grand fight on what was obviously a difficult argument given that the statue expressly says :-

On an application made by two people (the applicants) the court may make an order providing for a child to be treated in law as the child of the applicants

 

The argument is that this is discriminatory against single people, as opposed to people who are in couples, that is in itself prohibited under Article 14 and that this also interfered with the applicant’s article 8 rights, and also adds in Article 12 which provides the right to marry and found a family (suggesting that these are two separate rights) and that as this stipulation is not HRA compatible the Court should ‘read it down’  to interpret the bare Statute in a way that would be HRA compatible. Additionally that there’s a distinction between Parental Orders (which only couples can apply for ) and Adoption Orders (which can be applied for by a single person or a couple).

In part, however, this is problematic because when the HFEA Bill was going through Parliament there’s a specific request made for s54 to be amended to provide for single persons to apply for parental orders and that request was specifically rejected.  (So where the President was able to ‘generously’ assume that Parliament never intended that applicants who waited 18 months before applying should be deprived of the chance just because that’s what the Act says, that ‘generous’ interpretation method can’t fly here – Parliament expressly determined that the Applicants for Parental Orders must be a couple and NOT a single person.

 

  1. Miss Isaacs has argued with skill and pertinacity that section 54(1) can legitimately be ‘read down’. With all respect to her submissions, I am unable to agree.
  2. The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
  3. Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a “fundamental feature”, a “cardinal” or “essential” principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as Miss Isaacs would have me read it would not be “compatible with the underlying thrust of the legislation”, nor would it “go with the grain of the legislation.” On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation.
  4. Miss Isaacs seeks to persuade me to the other view by submitting (a) that the cardinal principle of the 2008 Act was to make the law fit for the twenty-first century by removing discrimination against different types of families and (b) that the fundamental purpose of section 54 was only ever to provide a regulatory scheme for the making of legal orders to safeguard the welfare of children born through surrogacy arrangements rather than to prevent or restrict eligibility to apply for such orders on the basis of any discriminatory criterion, such as single person status. No doubt these were important ingredients in what went to make up the statutory scheme as Parliament devised it in 2008, but they do not, in my judgment, reflect the whole picture or adequately describe all the key features of the statutory scheme.
  5. In my judgment, this application fails in limine. As a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act.
  6. I should make clear, for the avoidance of doubt or misunderstanding, that nothing I have said is intended to throw any doubt upon the correctness of the decisions, referred to in paragraph 26 above, holding that it is permissible to ‘read down’ sections 54(3) and 54(4) of the 2008 Act. In my judgment, each of those cases was correctly decided.

 

 

What is left, therefore, is an application that Parliament when enacting section 54 in this way acted in a way that was incompatible with Human Rights. That still stands to be determined.

 

There are of course other legal remedies open to a single person who enters into a surrogacy agreement – for one thing, that person having provided genetic material will have Parental Responsibility for the child.  (whereas in traditional couple commissioning a surrogate baby one will have PR and one won’t, hence the Parental Order ensuring that both of the couple have PR and legal rights about the child).   Old-fashioned Residence  (stupid “Child Arrangement Order” ) would do – assuming that an order was needed at all.

 

The father’s position here is complicated by the arrangement having been made in America, and thus him having no PR in England for this child. It still seems to me that as the child is in England and is habitually resident here, a Child Arrangements Order could be sought, but much brighter people than me have looked at it and said that the only two options are Parental Order or Adoption.

 

Adoption itself is not straightforward – as the man is the biological father of the child, it would have to come within s51 Adoption and Children Act 2002

 

(4)An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that

(a)the other natural parent is dead or cannot be found,

(b)by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37), there is no other parent, or

(c)there is some other reason justifying the child being adopted by the applicant alone,

and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.

 

As there is a mother of the child and she’s not dead and is capable of being found, it would have to be ground (c), which is pretty widely drawn. It is somewhat unusual to adopt your own child  (it does sometimes happen with step-parent adoptions – where say mum and step-dad adopt the child together)

 

I don’t know whether a declaration of incompatibility will be run here, and the President just concludes with:-

 

I end with this caveat. I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs’ submissions based on Articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility.

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Oedipus Wrecks

Posted on March 5, 2015 by suesspiciousminds

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.

 

 

 

 

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Commercial surrogacy, Iowa and an unforseen difficulty

Posted on May 16, 2014 by suesspiciousminds

 

The law reports today have had a distinctly American flavour, with this one being concerned with a commercial surrogacy arrangement between a French couple who moved to England, and a baby born in Iowa; and the next one up which is about Texans.

Re G and M 2014

http://www.familylaw.co.uk/articles/re-g-and-m-2014-ewhc-1561-fam

As the Court say, this is another case where a commercial surrogacy arrangement overseas throws up a complication, although this one would be wholly unexpected.

The French couple moved to the UK (relatively recently) but it was obviously a genuine move, them having bought a house, changed jobs, become contributors to the British tax system etc. They wanted a baby and provided their own genetic material to a surrogate mother in Iowa through an agency  (it will come to no surprise to regular readers that the sums of money that changed hands were authorised by the Court after the event)

The authorities in Iowa followed their processes to the letter, as did the French couple, and twins were born in due course. What the French people had not realised was that the last stage of the process in Iowa was effectively to make an adoption order for the twins in favour of this couple.

That’s a whole new ball game, because of this provision in the Adoption and Children Act 2002

The relevant parts of s 83(1) provides:

‘1) This section applies where a person who is habitually resident in the British Islands –

(b) At any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time.’

[6] The section then goes on to make various provisions including, importantly at s 83 (8), a person may be liable for a summary conviction in relation to contravention of that section. It sets out the maximum terms of summary conviction not exceeding six months, or a fine to the statutory maximum, or both

 

That section came about as a result of public policy issues, notably Mr and Mrs Kilshaw who ‘bought’ a baby on the internet when there was nothing preventing that sort of thing happening.  (One might suggest that commercial surrogacy is not all that different, but it is sufficiently different to make it legal – largely because the baby is created with genetic material from at least one of the people who will be caring for him/her)

 

This couple had not anticipated adopting this child, and had not, therefore, sought approval as adopters or to adopt from overseas. That put them in the position of having accidentally breached s83, and potentially liable for criminal charges.

[19] In reality the applicants had little option other than to undertake that legal process in Iowa. It was clearly in the children’s interests that they secured their legal position in the State of Iowa regarding both children. It also meant they fulfilled the terms of the surrogacy arrangement which required them to take all necessary steps to secure their legal relationship with the children, and to extinguish the respondent’s legal relationship and responsibilities regarding the children. It probably also assisted in them being able to secure the relevant immigration clearance to enable them to bring G and M to this jurisdiction, which they did very shortly thereafter, arriving back in this country on 21 April.

[20] However the difficulty with having undertaken those legal steps in Iowa, not only to comply with the terms of the agreement that they entered into, but also to secure the appropriate orders to ensure that M and G’s welfare needs were met whilst they were in that jurisdiction, the applicants left themselves open to potentially being in breach of s 83, namely bringing children into this jurisdiction without having gone through the required procedures having undertaken an adoption abroad.

[21] The applicants were clearly between a rock and a hard place. It is clear that from a welfare standpoint, and because of their obligations under the surrogacy agreement, the steps they took in the US were the right steps to take and were done with the best of intentions and with the children’s welfare uppermost in their minds. They had no idea that by undertaking those steps, they would potentially be in breach of s 83.

[22] It is important this issue is highlighted. Intended parents who are about to embark on similar arrangements in the US may wish to take advice in the early stages when they are selecting surrogate mothers and consider whether the State in which the child is going to be born requires the same process as was undertaken in Iowa, so they do not find themselves in breach of s 83. The difficulties that arose in this case where parties are following surrogacy arrangements and intending to come back to this jurisdiction to issue applications for parental orders need to be highlighted to the Department of Health so they can consider whether this situation was intended to be caught by the provisions of s 83 that result in a criminal offence.

[23] It is clearly an important issue to highlight but, as I shall come on to describe in a moment, in this case I am entirely satisfied the applicants undertook these steps because they felt that was the best way of securing their legal relationship with M and G in the State of Iowa. They were clearly following specialist legal advice as to what steps they should take. There is absolutely no suggestion in this case the applicants have done anything other than act in good faith and complied with all relevant authorities both in the US and here.

 

 

The Court went on to make the parental order sought by the couple

[53] Even if the requirements under s 54 are satisfied, the court has to go on to consider whether each child’s welfare needs will be met by the court making a parental order. Section 1 ACA 2002 sets out that the paramount consideration for the court is the lifelong welfare needs of each child, having regard to the welfare considerations set out in s 1(4).

[54] The court has been enormously assisted in this task by the report provided by John Power, the parental order reporter. His report is dated 31 January 2014 following his visit to the family home on 15 January of this year. He sets out in that detailed report his perceptive analysis of the welfare checklist between paras 40 – 47 which I wholly accept and endorse. He concludes his assessment with the following:

‘The applicants care for the children lovingly and have been proactive in ensuring that their needs are met. G and M demonstrate secure attachment to the intended parents. BB and BD are confident that AM entered into the surrogacy arrangement knowingly and willingly. They are confident that the amount paid was not such as to strongly influence or overpower the surrogate’s freewill in making the arrangement.

G and M’s permanent home will be with BB and BD. A parental order will benefit them greatly as it will secure G and M in law as the intended parents’ children, thus, affording them the greatest possible security. In the circumstances, I take the view that it is overwhelmingly in the interests of G and M for a parental order to be granted.’

[55] I am entirely satisfied that each child’s lifelong welfare needs can only be met by their legal relationship with the applicants being on the securest footing possible, and that can only be achieved by this court making a parental order.

 

 

Postscript – in a bizarre twist, another case CC V DD has just  been reported, with markedly similar issues  (French people adopting in England, surrogacy, Iowa, s83..  I had to read it twice to make sure it wasn’t the same judgment under a different name)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1307.html

 

 

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Surrogacy arrangements made overseas

Posted on April 29, 2014 by suesspiciousminds

 

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.

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Be my, be my baby

Posted on October 1, 2012 by suesspiciousminds

A discussion of the law on surrogacy, and the case of D and L (Surrogacy) 2012 EWHC 2631 Fam

A lot of new caselaw this week, and this one is a little off the beaten track. It involves the issue of surrogacy, which is something at the moment I’m interested in, as there’s a pending case of public interest  (reporting restrictions, upcoming criminal trial, can’t say anything more, sorry)

The case can be found here:-

http://www.familylawweek.co.uk/site.aspx?i=ed101209

The facts of the case are relatively straightforward  – a couple decided that they wanted to have a child and being a same-sex couple the traditional route wasn’t open to them. They entered into dialogue with an agency the Kiran clinic from Hydrabad, who found them a woman who was prepared to become a surrogate. That woman was from India.  A contract was signed. Twin babies were born and the couple were provided with those babies and returned to the UK with them.

In order to then obtain parental orders in the UK, they sought the mother’s consent to the making of such orders.

Because the UK provisions are that a consent given less than six weeks after the child is born is not valid  (in order to give a mother who has hormonal feelings of bonding and attachment or hormonal surges post-birth generally time to settle on her true feelings), the contract was not sufficient to demonstrate the mother’s consent.

The couple asked the agency to assist with this, and found them to be somewhat lacking in their willingness to assist.

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

Yes, you did read that correctly.  I really hope that the single sheet of paper found its way into the court bundle.  (And I can’t help speculating what it was – my gut feeling is a v-sign, or the bird , but was it a sketch or a photograph?)

The couple had not wanted to contact the birth mother directly, wanting to respect her privacy, but had to instruct an enquiry agent, whose search was fruitless.

“I am sorry to inform you that I could not locate Miss B. The address provided by the clinic where Miss B should be residing…is not the place where she lives. Property is currently empty but is former residence of [the caretaker/arranger]. His old clinic is on ground floor. Nobody there had any knowledge of Miss B or where she is living now. I have shown neighbours [identity] card of Miss B and they did not recognise her. I could not find out where she lives now and so could not get her to sign the forms.”

It seemed very likely that the address that the couple had been provided with by the agency was not accurate (although one has no way of knowing whether this was of the agency’s making, or whether they themselves had been misinformed)

[By the way, ‘misinformed’  takes me on a tangent to one of my favourite exchanges in cinema, from Casablanca.

Rick: My health. I came to Casablanca for the waters.

Captain Renault: The waters? What waters? We’re in the desert.

Rick: I was misinformed     ]

As is often the way in the High Court, you get a nice pithy summary of the law, which is always a great starting point if you need to research the issue.

17. Before turning to the detailed provisions of section 54 of the 2008 Act, I remind myself of the important change to the law affected by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010. Regulation 2 provides:

“The provisions of the 2002 Act [that is to say, the Adoption and Children Act 2002] set out in column 1 of Schedule 1 have effect in relation to parental orders made in England and Wales and applications for such orders as they have effect in relation to adoption orders and applications for such orders, subject to the modifications set out in column 2 of that Schedule.”

The effect of this provision is, inter alia, that section 1 of the 2002 Act applies to the making of parental orders in the following terms:

“(1) This section applies whenever a court is coming to a decision relating to the making of a parental order in relation to a child.
(2) The paramount consideration of the court must be the child’s welfare, throughout his life.
(3) The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(6)   The Court must always consider the whole range of powers available to it in the child’s case (whether under section 54 of the Human Fertilisation and Embryology Act 2008, the Adoption and Children Act 2002 as applied by regulation 2 of and Schedule 1.2 The Human Fertilisation and Embryology (Parental Orders) Regulations 2010 or the Children Act 1989) and the Court must not make an order under that section or under the 2002 Act so applied unless it considers that making the order would be better for the child than not doing so.

(7)  In this section, ‘coming to a decision relating to the making of a parental order in relation to a child’ the relation to a court includes

a)  coming to a decision in any proceedings where the orders that might be made by the court include a parental order (or the revocation of such an order) and 

b)  coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an individual under this Act but does not include coming to a decision about granting leaving in any other circumstances.

(8)  For the purposes of this section, 

a)  references to relationships are not confined to legal relationships,
b)  references to a relative, in relation to a child, include the child’s mother and father.”

19.  Those principles, in particular the paramountcy principle set out in subsection (2) and the checklist set out in subsection (4,) guide the court in exercising its powers to make parental orders under section 54 of the 2008 Act, which reads as follows:

“(1) On an application made by two people (‘the Applicants’) the court may make an order providing for a child to be treated in law as the child of the Applicants if

a) the child has been carried by a woman who is not one of the Applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

b) the gametes of at least one of the Applicants were used to bring about the creation of the embryo, and

c) the conditions in subsection (2) (8) are satisfied.

(2) The Applicants must be

a) husband and wife,
b) civil partners of each other, or
c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the Applicants must apply for the order during the period of six months beginning with the day in which the child is born.

(4) At the time of the application and the making of the order

a) the child’s home must be with the Applicants and
b) either or both of the Applicants must be domiciled in the United Kingdom or in the Channel Islands or in the Isle of Man. 

(5) At the time of the making of the order both the Applicants must have attained the age of 18.

(6)  The court must be satisfied that both

a) the woman who carried the child and
b) any other person who is a parent of the child but is not one of the Applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43)

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or who is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

(8) The court must be satisfied that no money or other benefit (other than for the expenses reasonably incurred) have been given or received by either of the Applicants for or in consideration of

a) the making of the order,
b) any agreement required by subsection (6)
c) the handing over of the child to the Applicants or
d) the making of arrangements for the view to the making of the order unless authorised by the court. 

  …
(10) Subsection (1) (a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her  artificial insemination.
…”

So, very broadly, before making the parental order, the Court must be satisfied that the child was the subject of a surrogacy arrangement and be the product of a use of gametes from one of the applicants, and that the other party consented (in a meaningful and informed way) to the pregnancy and to the making of a parental order; although s19(7) gives a way out where the mother cannot be found, or would be incapable of giving agreement.

[That feels a bit weird to me, since it suggests that the whole s19(6) issue of the mother having to have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order could be sidestepped by finding a surrogate who doesn’t really have capacity to agree it, but I’m sure that must be covered elsewhere and prohibited.  Okay, relatively sure.  Okay, dimly hopeful]

In considering whether the mother’s consent could be dispensed with because she could not be found, the Court made this determination

  1. 28.     First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the Applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the Applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.29.  Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks.30.  Thirdly, in the light of the changes affected by the 2010 regulations, the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order. Mr Ford submits, and I accept, that this includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.31.  Applying these principles to this case, I accept that these Applicants have taken all reasonable steps to obtain the woman’s consent.

    32.  Through no fault of their own, they have been given a false address. If it is correct that she is living in the state of Andhra Pradesh, then she is one of many millions of women living in that state and there is in my judgment no realistic hope of finding her. I accept that it is not the Applicants’ fault that they found themselves in this position. I am satisfied that they reasonable believed that the clinic and its staff would behave responsibly. It seems that they and the twins have been badly let down.

    33.  I note that Miss B appears to have given her consent to the making of the parental orders at an earlier stage, although in the circumstances I treat all documents and information provided by the clinic with caution. The fact that Miss B appears to have given informal consent earlier is a factor to be taken into account but for the reasons set out above, it carries little weight in my decision. I do, however, take into account the fact that as a matter of law the children’s welfare is my paramount consideration, and I further take into account that any further delay in reaching a decision is likely to be prejudicial to their welfare. I also take into account as required by the welfare checklist to be applied by virtue of the 2010 regulations, that there is realistically no likelihood that the twins would have any relationship with the surrogate, gestational mother, or any member of her family.

    34.  In the circumstances of this case, therefore, I conclude that the agreement of the surrogate mother Miss B is not required on the grounds that she cannot be found.

 

 

 

The payments made were also retrospectively approved – the payments amounted to £17,000.

36.  As set out above, section 54 (8) provides a condition of making a parental order that no money or other benefit (other than for expenses reasonable incurred) has been given or received by either of the applicant for or in consideration of the making of the order, any agreement required by the Act, the handing over of the child to the Applicants or the making of arrangements with the view to the making of the order, unless authorised by the court. The Applicants accept they have paid twenty seven thousand US dollars (which is approximately seventeen thousand pounds at current exchange rates) to the clinic for the surrogacy programme, on the basis that the clinic would then pay ‘reasonable expenses’ to Miss B in the sum of three hundred and fifty thousand rupees, approximately four thousand pounds at current exchange rates. The Applicants accept that the sums paid exceed a level that could be described as ‘reasonable expenses’. They therefore invite the court to give retrospective authorisation for the payments made.

37.  Unlike the question of consent, the issue of payments for surrogacy, and the basis upon which retrospective authorisation may be given, has been considered by the courts at first instance on several occasions in recent years, notably by Hedley J, who has played a lead role in the development of the law surrounding surrogacy, in four cases- Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam) and Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) – and, the most recently, the President Sir Nicholas Wall inRe X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam). From these authorities the following principles emerge.

(1) The question whether a payment exceeds the level of ‘reasonable expenses’ is a matter of fact in each case. There is no conventionally- recognised quantum of expenses or capital sum: Re L, supra.

(2) The principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas: Re S, supra.

(3) On the other hand, as a result of the changes brought about by the 2010 Regulations, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the children’s welfare as the paramount consideration: Re L, supra, and Re X and Y (2011), supra, per the President.

(4) It is almost impossible to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: per Hedley J in Re X and Y (2008), approved by the President in Re X and Y (2011) at paragraph 40. It follows that : ‘it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making’, per Hedley J in Re L at paragraph 10.

(5) Where the Applicants for a parental order are acting in good faith, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate to give retrospective authorisation, having regard to the paramountcy of the children’s welfare.

38.  In this case, the twin’s welfare unquestionably will be enhanced by the making of parental orders. I am satisfied that these Applicants acted in good faith and have been entirely candid in all of their dealings with the Court and the other authorities. As I have set out above, the total sum paid equivalent to about £17,000. Although I remind myself that each case should be scrutinised on its own facts, I note that the total paid was somewhat less than that paid by the Applicants in the President’s case Re X and Y (2011), which also involved a surrogacy arranged by an Indian clinic. In that case the President ruled that the sum paid was not so disproportionate that the granting of a parental order  would be an affront to public policy.

39. I am therefore prepared to give retrospective authorisation for the payments made by the Applicants in respect of the surrogacy arranged in this case.

The Court suggested that it would essential in future cases to ensure that where a surrogacy arrangement was entered into that the applicants ensured that they had opened a line of communication with the birth mother so that her written consent could be obtained six weeks or later after the birth.

 

 

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