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Surrogacy Law Update (September 2014)

In this inaugural surrogacy update, Andrew Powell, barrister, of 4 Paper Buildings reviews recent judgments in the High Court.

Andrew Powell, barrister, 4 Paper Buildings














Andrew Powell, barrister, 4 Paper Buildings

Over recent weeks surrogacy has received a great deal of media attention. The case of baby Gammy in Australia has reignited the debate about the law related to surrogacy on an international level with some commentators calling for a Surrogacy Hague Contention akin to adoption.

This update is intended to provide a précis of recent surrogacy decisions in this jurisdiction.


Married surrogate

Re D (A Child)
[2014] EWHC 2121 (Fam)

The subject child was born as a result of a commercial surrogacy arrangement in the Republic of Georgia using a donor egg and the father's sperm.

The key issue for the court's determination was the question of whether or not the surrogate was married at the relevant time. This was particularly relevant because if the surrogate mother was married at the time 'of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination', then for the purposes of English law her spouse would be the legal father unless it could be shown that he did not consent (s.35(1) HFEA 2008).

The court concluded that the evidence did not demonstrate that the surrogate mother was married at the relevant time. The parties agreed to a shared residence order between the mother and father.

Moylan J observed:

"There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market."


Surrogate's consent

WT (A Child) [2014] EWHC 1303 (Fam)

In this matter the applicants, a heterosexual unmarried couple, sought a parental order for their child born in India.  The child was conceived using a donor egg and the applicant's sperm. The surrogate was unmarried.

One of the issues to be determined was whether, as required by section 54(6) of the HFEA 2008, the surrogate had freely and unconditionally consented to the making of a parental order.

All of the documents signed by the surrogate were in English, including the consent Form A101A. There was no information whether she spoke English or had the documents translated for her. Understandably, this caused the court some anxiety at interim hearings. However, prior to the final hearing, the applicants were able to locate the surrogate and provide a sworn affidavit confirming that the surrogate had read and signed all the relevant documents.
Having considered all of the relevant criteria under s.54 of the HFEA 2008, the court granted the application for a parental order.


Seeking legal advice

CC v DD
[2014] EWHC 1307 (Fam)

The issue in this case was the effect of a step-parent adoption order made in the USA on the parents' application for a parental order in this jurisdiction. The father was the biological father and an adoption order was made in respect of his wife, the mother, in the State of Iowa.

Section 83 of the Adoption and Children Act 2002 places a restriction on individuals who are habitually resident in the "British Islands" bringing a child into this jurisdiction where the child is habitually resident elsewhere for the purpose of adoption. The court found no breach of section 83 as the parents were not habitually resident in this jurisdiction.

Theis J observed: 

"This case highlights once more the legal complexities in this area of the law and the need for those who embark on international surrogacy arrangements to ensure they have expert advice both here and in the jurisdiction where the arrangement is taking place."

Saliently, Theis J opined:

"There may well be cases, on different facts, where such a breach does occur. In that scenario the court will need to consider, in the light of the facts of that case, whether the applicants have acted in good faith or whether it would amount to a clear abuse of public policy which may prevent the court making a parental order. In circumstances such as this case, where the applicants acted in good faith relying on reputable legal advice it may be difficult to say they were not acting in good faith. However, each case is fact sensitive and needs to be carefully considered." [para 37]

Whilst the court in this case granted the applicants' application for a parental order, the case serves as a frank reminder that there may well be cases where, dependent upon the facts, there could be a breach of s83 of the Adoption and Children Act 2002.

G & M [2014] EWHC 1561 (Fam)

A same-sex couple made an application for a parental order following a surrogacy arrangement in America. The twins had been conceived using donor eggs which were transferred into a married surrogate. The twins were born in March 2013.

In accordance with Iowa law and the terms of the surrogacy contract, once DNA testing established that the applicants were the biological fathers (one of each twin) the name of each was registered on that  twin's birth certificates (ie of the twin whom each had fathered). The surrogate's parental relationship with the twins was then extinguished and a decree of adoption was ordered, affording each father equal parental rights over each twin.

The principal issue with which the court had to grapple with was whether there had been a breach of section 83 of the Adoption and Children Act 2002.

The court found that the applicants had little option other than to undertake the adoption process in Iowa and that they had acted in good faith in order to secure the legal position of the twins. Theis J observed that this case, as CC v DD, highlighted the importance of intended parents who embark on an international surrogacy arrangement obtaining legal advice in both jurisdictions. 

A secondary issue in this case was domicile. It was accepted that the applicants' domicile of origin was France. However their case was that they had abandoned their domicile of origin and acquired domicile of choice in this jurisdiction. The court was satisfied that they had acquired domicile of choice in this jurisdiction, the applicants having sold their main French property to purchase a family home in London and had long term permanent employment in this jurisdiction.


Application for parental order out of time

JP v (1) LP (2) SP (3) CP (A Child by his Guardian) (2014)

This was a decision made earlier this year by Eleanor King J.  The child at the centre of the proceedings was born as a result of an informal arrangement between the parties where, prior to conception, none of the parties had sought legal advice.  The commissioning parents used 'partial' surrogacy as a form of conception where the surrogate mother's egg is inseminated using the commissioning father's sperm. The surrogate mother was known to the commissioning parents.

The surrogate mother became pregnant after artificial insemination using the father's sperm. The parties planned that the surrogate mother would give birth at a hospital in Leicester. When the hospital became aware that the child was conceived as a result of a surrogacy arrangement it asked the parties to enter into a surrogacy arrangement and to provide the hospital with a copy of the same. The parties did so, instructing a firm of solicitors to draft an agreement.

Whilst lawyers are permitted to do so free of charge, the court found that the firm was in fact committing a criminal offence, in breach of s2 of the Surrogacy Arrangements Act 1985 by 'negotiating surrogacy arrangements on a commercial basis'.

Post birth, the hospital, having seen a copy of the surrogacy agreement, discharged the child into the care of the commissioning parents. The child's birth was subsequently registered, naming the surrogate mother as the 'mother' and the commissioning father as the 'father'.

The commissioning parents' relationship broke down and the mother left the former matrimonial home with the child and then issued an application for a residence order. The matter came before the county court which made a shared residence order, with both parents undertaking to regularise the child's legal status by issuing an application for a parental order. By this time the child was almost 5 months old.  The father signed the parental order application form and gave it to the mother to sign and lodge. The mother signed the application, but did not lodge it as agreed.  The application was actually issued in October, by which time the child was over 7 months old. By then the application was out of time because the statutory time limit is 6 months from birth (notwithstanding the fact that the parents had separated and so the child's home was not with the applicants).

Months later when relations between the parents deteriorated further, the mother issued an application for a specific issue order for the child to be returned to her care after contact with the father. The shared residence order was confirmed and the mother and father renewed their undertaking to re-issue their application for a parental order (it is plain that it had not been appreciated that the statutory time limit had expired).

The matter was transferred to the High Court and the surrogate and child were joined as parties. In the absence of a parental order being made, the surrogate mother remained the child's legal mother; the father was the child's legal and genetic father, whilst the mother had no formal status save for being the child's psychological parent.

Special guardianship or adoption orders were not available options. However the parties came to an agreement whereby the shared residence order remained in place with all issues relating to parental responsibility delegated to the mother and father jointly; and a prohibition was made on the surrogate mother exercising any parental responsibility without the leave of the court. The child was also made a ward of court.

Eleanor King J observed that the case highlighted the surrogacy provisions in the Human Fertilisation and Embryology Act 2008 "should be as much a part of the skills set of a competent general family practitioner".


Conclusions

The recently reported surrogacy cases all highlight a similar theme: the importance of individuals embarking on surrogacy arrangements, whether domestic or international, seeking appropriate legal advice before they do so. In particular, where the arrangement is an international one there is merit in seeking advice in both jurisdictions, where possible, prior to insemination.

Proper documentary evidence (notarised translations where appropriate) is also important in ensuring that each of the section 54 criteria is met, which will make for a much more straightforward process when applying for a parental order.   

4/9/14