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Surrogacy and exploitation and Facebook

This is a grubby and desperately sad case, which indicates that there urgently needs to be some proper system of regulation over commercial surrogacy  (which ought not to exist at all in this country but is doing so under the guise of ‘reasonable expenses’)   This case highlights how easily someone very vulnerable, whose financial circumstances were so stretched that she couldn’t afford phone top-ups might be persuaded by what in that context is a huge amount of money.   (Here £9,000. If you are on benefits, £9,000 is a LOT of money)

Z (Surrogacy agreements : Child Arrangement Orders) 2016

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2016/34.html

 

Here a baby boy Z, was born as a result of a surrogacy arrangement in 2015.  Z’s mother X, agreed to be a surrogate for a same-sex couple A and B.  The child was the biological child of A, but the eggs were provided through an anonymous egg donor. So X was the vessel for carrying the baby, but was not a biological or genetic mother to the baby.

The surrogacy arrangement was set up through a Facebook Group.

The applicants, who are a same sex couple, were introduced to X through a Facebook surrogacy site, which was run or administered by W and others, to provide a forum for the introduction of potential surrogates and commissioning parents. Although it is the applicants’ evidence was they were not members of the forum it was through that social media site that they were introduced to X. There is no screening of either surrogate or commissioning parents and no support available other than support from others involved with the forum. This court has heard, in this case and in others, that the surrogates were paid sums of money for their expenses at what was considered to be the “going rate”; which apparently varied from about £8,000 to £15,000. This unregulated form of surrogacy means that there are on the one side vulnerable surrogates, and on the other commissioning parents who are legally unprotected from unpredictable outcomes.

 

 

A and B had had Parental Orders granted in relation to twins, born in another surrogacy arrangement through a woman V.  Within 48 hours of the orders, they began making arrangements for another child through surrogacy.

 

Here are some of the things that the Judge said about V and the way that A and B had behaved towards her

 

  1. The applicants are a same sex couple who are in a civil partnership; they are both professionals, A an academic and B works for a charity as an advisor. Socially and economically they are in a much more secure position than X and much more affluent, although by no means wealthy. They are the parents of twin boys born in June 2013 by virtue of parental orders made in January 2014 by the Family Court. Within 48 hours of those orders being granted B started to make contact online to find another surrogate.
  2. The twins are the biological children of A and a known egg donor. They were conceived as a result of IVF treatment in the same clinic in Cyprus later used for the conception of Z. The twins were carried by V, a gestational surrogate. This first surrogacy agreement and the circumstances surrounding it are relevant as the applicants’ conduct was repeated in their agreement with X. Of particular note was their attitude towards the surrogate V which was mirrored later in their attitude towards X. The applicants ‘met’ V online or on Facebook in late September 2011, they knew very little about V relying instead on the views of L who was also involved in the surrogacy forum; what they did know was that V was in the process of what they called “matching” with another couple of commissioning parents but that that agreement was breaking down. There is no evidence before me that the reason for the breakdown was explored or that the applicants were concerned about it.
  3. Once introduced the applicants and V had become further acquainted online and arranged to meet in person. As was clear from the oral evidence of the applicants to this court the purpose and focus of that, their first meeting, was to sign the surrogacy agreement. A told the court in his oral evidence that the three had met in a services area in a “restaurant off the motorway in the West Midlands” and, that at the meeting which lasted 3-4 hours, they had discussed “the agreement and who we were”. They had signed an agreement at that meeting and that had constituted “matching”.
  4. It was abundantly clear from their evidence that A and B knew very little at all about V, her circumstances or her motivation for acting as their surrogate when they signed the agreement with her. L, who gave evidence before me, knew that V was in some financial difficulty because her phone had been cut off prior to the meeting or “match”. Money and payments were an issue between the applicants and V during the pregnancy and after it; as could be seen from electronic messages exchanged between them. L said, in her written statement, that V had “money trouble” throughout the pregnancy. It was known that V had separated from her partner at the time of the “match” so it would be fair to assume that she was, at the very least, more emotionally vulnerable than she otherwise might have been but neither of the applicants appear to have given this any thought and were firmly focussed on what she would be doing for them.
  5. In his oral evidence B, who told me that he had found V’s behaviour to be too demanding just after the twins’ birth, dismissed her need for his support at the time unsympathetically describing it as being “because of her hormones”. B was unable to demonstrate any understanding or empathy for a woman who had just given birth to twins, was in hospital alone and unsupported there or at home until he was pressed to do so. L was similarly dismissive and also gave a harsh unsympathetic description of V; who was described in a similar vein by all three witnesses; L, A and B.
  6. V was characterised by all three of them as “volatile” without any thought being given as to why she might be in an emotional, still less in a vulnerable, state. When considering their evidence about V in its totality I found the applicants to be dismissive of the considerable positive contribution to their lives she had made, at considerable physical risk to herself. She was unwell for the last three months of the pregnancy and required someone to live in at the end of the pregnancy to look after her own children. In their descriptions of V as a person they were largely negative and appeared almost wholly uninterested in her, rather, it seems, they saw her primarily as a service provider to whom they had paid £12,500.
  7. The applicants complained about V demanding too much attention from them after the twins were born and handed over to them. B said that she kept texting him when she and the twins were still in hospital after the birth, and that she kept wanting him to spend time with her. Both he and A saw this as unreasonable as they wanted to be with the twins who had to remain in hospital for some time for treatment. The applicants remained on speaking terms until after the parental orders were granted and it was part of the evidence before the court when the parental orders were made that they had an agreement with V that she would remain involved for the twins’ sake. By the time of this hearing they had “fallen out with her entirely“. The terminating event was, they claim, because she had failed properly to acknowledge the children’s first birthday. I find this evidence inherently contradictory as they also claimed they had found it necessary to limit V’s involvement as they found her to be both intrusive and demanding.

When the baby was born, X did not want to hand the child over to A and B (and you might get a sense of why later on) and that then led to private law proceedings to determine where the child should live.

 

The case was decided by Ms Justice Russell, who is very experienced with surrogacy and HFEA cases.

 

Firstly, and significantly, X was cognitively assessed and was found to have difficulties in understanding things and had to be helped during the hearing.

  1. X has been assessed by Dr Willemsen as having learning difficulties, which appeared to him to be congenital. Until she was seen by him and his report prepared, it would seem that neither her family nor her partner were aware of her difficulties although she had been perceived as different from her siblings and her peers at school, and her partner told me that while he was aware she was vulnerable he did not know just how vulnerable. X is aware of what she sees as her own short-comings and, as described by Dr Willemsen, will want to please people to hide her shame and embarrassment. X has difficulty in speaking up as observed by the guardian and confirmed by Dr Willemsen. Dr Willemsen told the court in his report that on growing up she has become more aware of her difficulties and this has been accompanied by self-doubt and insecurity; to deal with this she has sought isolation and did so from her partner during the pregnancy. Dr Willemsen, who gave oral evidence, reported that X “is a vulnerable young woman who is susceptible to influence and pressure from others. She gave a few examples where she felt she had not been able to speak out loud about her thoughts and feelings to the couple who asked her to be a surrogate.”
  2. Dr Willemsen emphasised that despite her difficulties she had been able to concentrate during their meetings (with half hour breaks) and that what was not affected was her “ability to be emotionally available. She was able to relay her frustrations, as well has her love for [her son with P] and [Z]. She was able to speak as openly as she could about her life and the course of events she had found herself in.”

 

If surrogacy were properly regulated, it is hard to believe that a person such as X could have been approved as someone who really knew what she was getting into or the emotional turmoil it might cause her.  It was not that her problems were so subtle that only an expert assessment could reveal them :-

 

  1. It is striking how the applicants did not seem able to see how vulnerable X was even at this stage. The guardian was almost immediately struck by it and on her behalf her counsel pointed out how many other people have commented on her vulnerability, over and above Dr Willemsen and the intermediary. The guardian said even on their first phone call she sensed that X was lacking in confidence and that by the time she had met X and spoken to her she believed she had learning difficulties. Everyone that the guardian had spoken to in August and September when she visited the area where X lives, to assess X’s support network, all commented on her vulnerability: they included the mid-wife; P’s mother who described the X as ‘naïve and gullible‘; P, himself, spoke about “how vulnerable [X] is”; X’s step-father described her as “gullible”; her own sister described X as “very naïve”; a family friend described X as lacking confidence.

 

Do we as a society, want someone who is vulnerable, naïve and gullible, being paid money to have a baby on behalf of someone she barely knows?  Let’s look at the circumstances in which the surrogacy agreement was signed

 

Although X had agreed to act as a gestational or “host” surrogate for the applicants, the circumstances in which agreement was reached and signed by X is a matter of some concern and one that I shall return to. The agreement was one found on-line and based on overseas commercial surrogacy agreements from the USA. The provisions and regulation of commercial surrogacy in the USA do not, in any real sense or detail, mirror the supposedly altruistic and non-commercial surrogacy in the United Kingdom. It was signed by X at a fast-food outlet at or near a railway station after a brief face to face meeting lasting less than two hours. X was accompanied by her young son and a young relative, no more than eighteen years old. X’s partner did not support the surrogacy although he did not object to it; as he later told me, he did not believe that it was for him to tell X what to do with her body.

 

By the time of the hearing, in considering whether a Parental Order could be made, the Judge had to look at whether X WAS consenting (she was not) and whether if she was consenting that she was doing so on an informed basis (she was not)

 

Legal framework

  1. The HFEA s56 (6) provides that a parental order can be made if the court is satisfied that the woman who carried the child (X) has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. I have to say that, in this case, even if X had given her consent I would not be satisfied that she had done so with a full understanding of what was involved. X does not consent freely or unconditionally so neither limb of s54 (6) has been met and there is no question of a parental order ever being made.

 

Looking at the pregnancy, it seemed that initially, there was a wave of enthusiasm from both sides about the arrangements

 

From the first few days the messages on Facebook, as described by Dr Willemsen, provide an illustration of the faux-intimacy that developed between the applicants and X. As he said “fairly soon an amicable, almost euphoric, atmosphere develops between people who hardly know each other. There is a shared excitement based, probably, on two very different realities. It is easy to read a great deal into Facebook (and email) messages.” It was his view, and one I share, that X was unable to put forward her opinions, just to say that she was “totally fine” when the applicants message that they are now “matched” and “totally fine” with an agreement that she had signed, although it is clear that she could not read or understand the contract she had signed. So little were they concerned about any protection for X’s position, moreover, that the applicants never even bothered to send her a signed copy. The applicants’ sole focus was on signing an agreement. There was little, if any, evidence in their messages of interest in X herself, just as there had been little interest in V.

 

But then look at how things soured  – and squirm as you read the attitude of A and B towards the woman who was carrying a child for them and her financial circumstances.

 

  1. The level of compensation or expenses which the applicants were willing to offer was, at £9,000, at the low end of the scale that is prevalent on the online websites and forums. From evidence I heard, and from the emails and electronic messages provided to the court, it would seem that this was the figure suggested to the applicants by W before it was suggested to X. In his oral evidence B (who was responsible for most of the communication) said that he assumed X was on benefits but admitted he was not sure, did not appear interested either way and certainly took no steps to find out. This presumption would seem to indicate that he expected financially vulnerable or impoverished women to be more likely to be putting themselves forward for surrogacy.
  2. In her messages X often referred to having problems using the phone and/or the internet because she had no credit, which should have revealed something of her straitened financial circumstances and economic vulnerability but this was not a matter ever taken up by the applicants. Nor is there any evidence that they considered, at any stage, whether a need for money might affect her ability to enter freely into any agreement. As commissioning parents entering into an agreement which can and does compromise the health of the surrogate they owed her a basic duty of care and did not carry out that duty or signal that they considered they had a responsibility for her well-being other than as a healthy surrogate for their off-spring.
  3. The applicants did not consider with X, or discuss with her, what she knew or understood about her rights or legal status in respect of any child or their legal rights and status. In his oral evidence B said he assumed she would know about such things from the Facebook forum. There is no evidence before this court that they had touched on the legal and ethical considerations that arise in surrogacy at all. They had not informed themselves of what professional support may be available to assist in successful surrogacy arrangements such as implications counselling; indeed when giving his oral evidence A did not know what it was. The sums offered, by way of compensation, for “contingencies,” such as £1,000 for a hysterectomy, were wholly inadequate and can only be taken as evidence of the low value that they placed on the physical and emotional well-being of the woman who acted as their surrogate. The language used by the applicants was unequivocally the language of the market-place; “the absolute maximum we could offer for each potentially happening would be £1000″. Their approach to X was, at the very least, potentially exploitative and they did little or nothing to ameliorate it

 

 

Neither applicant, in his evidence, was able to give more than a perfunctory account of their meeting with X in March 2014 or to recall anything of what she was like as a person. The meeting in the fast-fast-food outlet, near to the railway station they had all travelled to, was very brief. There were three children present, the twins and X’s little boy and a young man not much more than a child himself, who was X’s 18 year old nephew, and who acted as a witness. From their own evidence it was clear that the applicants discussed only those aspects of the agreement about which they were concerned. X did not, could not, read or properly understand the agreement and such was their self-absorption that neither applicant noticed, and in any case they did not see fit to go through the agreement with her to reassure X, or even themselves, that she understood it. Despite promising to send her a signed copy they only emailed the “agreement” to her several months later leaving her to try to read it on her phone – she does not have a computer. It is inexplicable how the applicants could have ever considered this meeting as an acceptable way to “get to know” the woman who would carry their children and consider that they had, even in the loosest sense, “matched”.  

 

 

Remember the twins commissioned from V ? And V being cut out of the twins life afterwards? Well, as V and X had both been members of the same facebook group, they were in communication with each other.

 

  1. In planning the trip to Cyprus the applicants were concerned with their own convenience, such as A going instead of B, who had had the bulk of the contact with X. B accepted in his oral evidence that they did not discuss between themselves or consider at all how X might experience the trip or how to make it comfortable for her. In his evidence A came across as seeming to believe that X should have been grateful for the trip, which, after all, they were financing. Their behaviour towards her was crass; they did not know that she had never been abroad before because they didn’t ask. They took no steps to ensure that she was comfortable or to find out from her what they could do to make her feel supported, and, above all appreciated.
  2. The trip was a very unpleasant one for X. In his evidence A spoke only of the symbolism for him of being present during transfer of the embryos and was either unwilling or unable to recognize how lonely or frightening the trip was for X. He came across as emotionally unavailable and entirely self-regarding.
  3. X was effectively excluded from discussions at the clinic; certainly she did not, on anyone’s account, actively participate in any conversation with the consultant in the clinic. It is understandable that X felt intimidated by A and his suggestion that he had helped her by holding her hand while the embryos were put inside her body is an example of the crass behaviour to which I have already referred. X, naturally, felt nervous throughout the trip and was not at ease with A. The food was strange and unpalatable to her and she felt even more isolated because she did not have credit on her phone. Why A did not see to it that she was able to contact her family and top up her phone is incomprehensible. To repeat what Dr Willemsen said, as fantasy met medical reality she felt used and deeply uncomfortable about the arrangement but she could not find a way of expressing her feelings because she was concerned that she might upset and displease the couple. She found herself caught in a conflict; in the words of Dr Willemsen “between maintaining the fantasy and facing up to reality. She must have felt very alone at times.”
  4. The procedure in Cyprus had a huge impact on X. She had never wanted to carry two embryos and later told W that she did not say anything to the applicants as she did not want to let them down. She was both scared and anxious about it but believed the applicants when they told her that “probably only one would work.” X’s relationship with the applicants deteriorated as the reality of the uncomfortable and intrusive IVF procedure and the pregnancy took hold and she began, increasingly, to see herself as being used. Her reaction at the time has been graphically described by Dr Willemsen; as her emotional state and responses are essentially subjective I accept his evidence, and, furthermore I consider that the way that X responded to her treatment by A and B was entirely predictable. The fact that her own difficulties made her more vulnerable to suggestion and pressure being put on her does not in any way detract from her reaction, but it made it more difficult for her to stand up to the applicants and tell them that she no longer wanted to proceed. She told Dr Willemsen that she had had doubts before the trip but her experience while she was there intensified her feelings of doubt and uncertainty and she felt used.
  5. It was from then that she had started to look for a way out of the agreement. It is clear from the messages that she sent in late October 2014 that she felt worried about having twins “how scairy twins lol xx” and … “my partners like its gunna damage your body blah blah…” to which L, who she was in touch with online, replied “no it wont [sic]”; a response, which while might have been meant as reassuring, was patently untrue. The applicants had not arranged life insurance as agreed despite the agreement stipulating it would be arranged before pregnancy and X became so worried, that this issue was revisited 4 days later, when, in early November 2014, W emailed the applicants about arranging a scan for X and X messaged A “I would like to get insurance starting today please, as it should have been done befor we [sic]got pregnant xx”.
  6. Then in mid-November V was told by L that X was the next surrogate for the applicants. When A became aware of this two days later he sent a message to W about V saying “she can turn really nasty” A sent a message to X telling her “to try not to get stressed and ignore nasty msgs we had such good news today with the heartbeats lets focus on the future”. He clearly had not thought about the effect that V might have on X when she would come to realise that they had deliberately withheld information from her about the poor relationship that had developed between V and the applicants during their “journey”. His messages are further evidence that the applicants had sought to ensure that V did not find out about the second pregnancy to stop her from putting any surrogate off entering into a surrogacy agreement with them, not, as they said in their evidence, to avoid confrontation with V.
  7. Over the next week in November X received several messages from V in which she complained that the applicants had not paid her fairly; that she had been ill during and after pregnancy with the twins; and that they had treated her badly. Unsurprisingly this increased the fears X already had about her agreement with the applicants. The standard response from the applicants and from L was to minimize the concerns by repeatedly blaming V and saying, amongst other similar epithets, that she was “bonkers”. A then sent X a message saying ‘its sad but I’m reconciled now to having no relationship’ with V which, far from reassuring her must have sent the unspoken message to X that she, too, could be cut out of any child’s life in the future.
  8. In their oral evidence both applicants showed limited if any real understanding of the various factors which had undermined X’s confidence in the agreement and led her to consider a termination. Instead I was left with the clear impression that they seemed to expect her to be grateful for acting as their surrogate rather than the other way around. From the messages filed in the court bundle it is clear that there were emotionally intense exchanges from V, W and others on the forum to X. Later in November 2014 B travelled to be there during a scan and saw X for the first time since March 2014 (when they met at the fast food outlet to sign the agreement). They do not appear to have discussed V or what had happened between them. X’s anxiety had increased and in late November she asked V to speak to or text her sister. It was around this time that she decided to seek a termination and turned to W for support.

 

 

 

In the event, she didn’t have a termination, but she did tell A and B that there had been a miscarriage. The woman running the Facebook group, W, doesn’t come out of this judgment terribly well.

 

Miscarriage, birth and the role of W

  1. Although there is no evidence before the court to establish that W is an agent or runs an agency it is clear that she has had a very strong interest in linking surrogates to commissioning parents and being involved in surrogacy. Precisely what her motivation for taking on this role is not something that this court is in a position to decide. As can be seen from the messages that passed between them W offered to “link” or introduce the applicants to X and repeatedly told them she had many other contacts and options for them should the “match” not work out. W’s influence over X can be seen in her successful attempt to persuade X not to have a termination and W accepted, in her evidence, that she was instrumental in that decision.
  2. Although W has tried to insist that she did not want to get involved in things which did not concern her, she actively and deliberately placed herself at the centre of the crisis that X was experiencing and which unfolded on the Facebook site over V in November 2014, and which, in turn, lead to X deceiving the applicants. When W gave oral evidence before me she was by turn defiant and defensive; she was unsympathetic to X and sided with the applicants who she referred to as “the boys“. W accepted that she had encouraged X to tell the applicants she had miscarried and gave as her own motivation for doing so her determination to ensure that there was no termination. She told me she was aware that the applicants’ relationship with V had ended badly and said that when X complained to her, for example about the life insurance not being in place, she had begun to believe that V might have been right about the applicants as there were now two surrogates with complaints about them.
  3. It remains unclear from W’s written statement or from her oral evidence why she later changed her mind, took against X and decided to inform the applicants that she and X had deceived them about the miscarriage. I accept the submission made on behalf of X that W seemed personally to invest in continuing the pregnancy and then disclosing that X was still pregnant to A and B; she had no reason to involve herself to this extent apart from her own personal gratification in a sense of power or exercise of a controlling influence over the lives of others with whom she was so singularly unconcerned. At first, as can be seen from the messages exchanged between them, W urged X to carry the child rather than terminate a pregnancy; she explained to X that she was the legal parent, as X had thought she would go to prison if she did not hand over the baby at birth (another example of how little X had understood her legal position and the effects of the agreement). There can be no doubt that W can be characterised as manipulative, just as there is no doubting that X was easily led. W’s messages were directive and it was she who suggested to X how she should lie to the applicants, going as far as to say “make sure you get paid first”.
  4. That W was duplicitous is obvious from her conduct; on the one hand she encouraged X to deceive the applicants, and some of the comments she made about A and B were vicious and unkind; and on the other having convinced X to keep the baby she then told the applicants about the pregnancy while pretending to X that she was supporting her. In what Ms Fottrell described as a particularly cruel exchange about X’s inability to afford a lawyer in any court proceedings she messaged A “lets hope she xant afford a solicitor if she cannot even afford credit on her phone! Xxx”. A’s response of “isn’t she a joke, [W]!” exposed the contempt in which he held the woman who had gone through a very difficult pregnancy at his behest, whether or not she had ended up trying to deceive him. This is in contrast to X, who has continued to seek to please the applicants, as evidenced in her readiness to agree to extended contact whenever it has been suggested to her and to ensure that Z has had an opportunity to develop a relationship with his biological father.

 

[The Judge doesn’t say that these messages were vile, but my personal view is that she would have been entitled to do so. You can all form your own personal views, I’m sure]

  1. While W’s manipulation of X was calculated and had a direct impact on her, the continued inability of A and B, in their evidence before this court, even to consider that their conduct may have had something to do with the manner in which X had reacted to them is noteworthy, and in keeping with the air of victimhood on the one hand and sense of entitlement on the other trailed throughout their written evidence. It was palpably evident that A seemed to feel he had ownership of Z and that X was merely a gestational surrogate, a mere vessel, with no rights over the child she was carrying and none over the child when he was born. Throughout these proceedings as can be seen from their reaction to the guardian’s recommendations about contact and other matters concerning Z’s care both the applicants struggled to accept X as Z’s mother; the woman who carried and gave birth to him. It was not until they gave oral evidence that there was, reluctantly, an emerging acceptance of the importance of that role in Z’s life.

 

 

Like me, you might well be very relieved that the view of the Court was that X, with help from her partner and support, should keep Z and that Z should not be moved to A and B.  Z will have contact with A and B one weekend every two months.

There are some massive lessons to be learned from this case – treating people with kindness and respect is much more likely to result in a workable surrogacy arrangement than treating them as merely a ‘vessel’ and the arrangement as a commercial transaction or purchase; that if surrogacy agreements go wrong they can take a great deal of time, heartache and money to unpick and put right, and that surely we need some proper form of protection so that someone like X who was naïve, gullible, easily led, vulnerable and sufficiently poor that she had difficulty in even keeping credit on her phone is not exploited or manipulated by others who don’t have those vulnerabilities.

 

 

 

 

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.

 

 

 

 

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

 

 

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.

Breastfeeding mother versus gay couple

 

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

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

Re H v S (surrogacy agreement) 2015.

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

 

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

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

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

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

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

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

Ms Justice Russell said this:-

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

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

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

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

 

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

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

 

 

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

 

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

 

Oedipus Wrecks

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

 

Re B v C (Surrogacy : Adoption) 2015

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

With me so far?

 

Here is the tricky part.

 

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

 

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

 

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

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

(2) The steps are—

 

 

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

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

(c) offering to find a child for adoption,

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

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

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

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

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

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

 

 

 

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

(4) The condition is that—

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

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

 

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

 

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

 

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

 

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

 

 

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

 

 

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

 

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

 

 

 

 

Conjurers and children’s birthday parties

 

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

 

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

 

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

 

That caused them to fall foul of

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

 

 

 

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

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

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

 

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

 

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

 

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

 

 

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

 

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

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

 

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

 

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

He concluded (para 23):

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

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

 

 

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

 

 

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

 

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

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

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

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

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

 

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

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

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

 

 

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

 

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

Overseas surrogacy

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

 

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

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

 

and

 

https://suesspiciousminds.com/2014/05/16/commercial-surrogacy-iowa-and-an-unforseen-difficulty/    about a tricky commercial surrogacy in Iowa, that went wrong because the Iowa procedure is that the commissioning ‘parents’ adopt the child, which breaches English law on arranging adoptions overseas.

 

and

https://suesspiciousminds.com/2014/07/02/yet-more-international-surrogacy/   about a commercial surrogacy in Georgia, where the Georgian organisation seemed incapable of answering a straight question about whether the surrogate mother was married.

 

There has been the obvious scandal this week about baby Gammy

 

http://www.bbc.co.uk/news/world-asia-28627374

 

The story here is that an Australian couple entered into a surrogacy arrangement with commercial elements in Thailand. The surrogate mother gave birth to twins, one of whom, Gammy, has Downs Syndrome. The story (though it is refuted) is that the Australian couple took the other twin but would not take Gammy. There are calls for commercial and overseas surrogacy to be better regulated.

I would not want to demonise surrogacy in the flurry of outrage about this particular case. It works for many people and provides a legitimate way of someone to concieve and care for a biological child if they are incapable of physically carrying a child of their own, for example.

 

So first, what IS surrogacy?

 

It involves having a woman become pregnant, carry the baby, give birth and then give the baby up. But most importantly, the persons to whom the baby is given to have provided either the sperm or the eggs, or both, to make the fertilisation possible. I.e one of the people who will be caring for the baby will be a genetic parent to that child.  If there isn’t a genetic link by the provision of either sperm or eggs, that isn’t surrogacy. That’s just straight out buying a baby.

 

In England, surrogacy is legal, although the commercial element is highly regulated. A person can’t pay for a baby, nor can the surrogate mother charge a fee. What is legitimate is a payment to cover legitimate and genuine expenses involved.

 

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

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

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

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

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

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

 

Anyone purporting to run a Surrogacy Agency in the UK, or to charge an introduction fee or arrangement fee fo surrogacy is doing so illegally.

 

The Human Fertilisation and Embryology Authority has some very good guidance about Surrogacy, here

http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html#8

 

Overseas, however, it is lawful in some countries to have an Agency to put prospective commissioners together with prospective surrogates, and to charge a fee for doing so. As happened here.

 

Here are the two major issues with Surrogacy for the ‘commissioning parents’, particularly where it is overseas

 

1.  If the biological / birth mother gives birth and then does not want to hand the child over, it is easy to get embroiled in difficult litigation over it. The existence of a ‘contract’ or ‘agreement’ to hand over the baby isn’t going to be determinative of it, things will depend very much on the law in that country and the mother’s ability to look after the child. It can be very protracted, confusing and expensive.

 

2. To ensure that both ‘commissioning parents’ have legal rights to the child in this country, an application to an English Court has to be made. That’s an application for a Parental Order.  Here is the really important bit. That application MUST be issued before the child is six months old.  If it is issued six months and one day after birth, it is too late. You can’t get your Parental Order. The Court has no power to cut you some slack or let you off. That six month cut off is a real deal. So you have to be organised.  Also, your application has to cover all of the necessary details – getting evidence that the Surrogate mother is not married, that she is the genuine mother of the child and that she genuinely consents is all vital. And for that, given that the Surrogate mother is overseas, you can be entirely dependent on the Surrogate Agency being good.  (they aren’t always)

 

One of the things the Court will have to do in the consideration of the Parental Order is look at the fees that you paid. This is a scrutiny to make sure that you paid a reasonable and fair amount, and importantly that it wasn’t such a high amount that it becomes ‘buying a baby’  – i.e that the sum offered is so much that the Surrogate mother is not simply doing this as a purely commercial enterprise. As a matter of public policy, the Government don’t want people buying and selling babies. And when it comes to ‘buying’ a baby from  a country that has substantial poverty and different standards of living that becomes even more sensitive.

 

Here are the guidelines for Courts when approving such payments (which remember is retrospective – after the money has been paid and the baby handed over)

 

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

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

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

 

It is worth noting that the sort of amounts sanctioned by English Courts this year have been approximately £20,000, which went to an Agency in India. (The Agency kept nearly all of that, with about £4,000 going to the Surrogate mother).

 

In England, £4,000 is not out of line with what one might pay a Surrogate Mother in terms of expenses, but £4,000 probably is a substantial amount more in India in terms of buying power.  How confident can we be that this is not exploitative, and essentially ‘buying’ a baby?

 

I’d certainly urge anyone contemplating surrogacy overseas to get their own legal advice, and probably to contact the HFEA for help and guidance. There are better places than others when considering overseas surrogacy, and certainly better agencies than others.

 

 

 

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