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Home > Articles > 2016 archive

Surrogacy Law Update – October 2016

Andrew Powell, barrister, 4 Paper Buildings, reviews the latest important judgments concerning surrogacy law.

Andrew Powell, barrister, 4 Paper Buildings

 














Andrew Powell, barrister, 4 Paper Buildings

In this update I shall consider judgments relating to:


Re F & M (Children) (Thai Surrogacy) (Enduring family relationship) [2016] EWHC 1594 (Fam)

One of the remaining areas of the now well known section 54 criteria of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) that has not received significant judicial scrutiny has been the provision under s 54(2)(c) concerning applicants who are not married or in a civil partnership but are in an enduring family relationship. 

In Re F & M (Children) (Thai Surrogacy) (Enduring family relationship) [2016] EWHC 1594 (Fam), the application for parental orders concerned twins, a girl (F) and a boy (M), born in Thailand as a result of a commercial surrogacy agreement entered into by the applicants and a gestational surrogate. The appointed parental order reporter expressed reservations as to whether the applicants' relationship was an enduring family relationship.

The applicants' relationship commenced in April 2014. The twins were born in Thailand in January 2015 using a donor egg and the sperm of the first applicant. The fertilised eggs were then implanted into a gestational surrogate.

The applicants made applications for parental orders on time and the court directed, in the usual way, that they provide statements and the parental order reporter provide a report. In respect of the question of whether the applicants' relationship could be considered to be an enduring family relationship, Russell J observed:

"16.The HFEA does not define what an "enduring relationship" is and it was submitted on their behalf that the Court would wish to consider the nature of the applicants' relationship having regard to the specific facts of this case as set out in their joint statement and in the POR's assessment of the couple; that is the approach which I intend to take. It mirrors the approach taken in previous cases where parental orders have been made (of which more below) and the nature and structure of any family relationship must be one which is in, the greatest part, based on the facts of each specific case and family. The families in which children live and are brought up are increasingly diverse and often more fluid than in the past; the enactment of the HFEA 2008 came about in recognition of this change. I have been referred to the Parliamentary debates which took place at the time.

17. Counsel for the applicants made reference to the notes to the Family Court Practice 2015 (at page 374) which set out, in relation to the definition under the Adoption and Children Act 2002 (ACA 2002), that 'To establish that a couple are 'living as partners in an enduring family relationship', there must first be an unambiguous intention to create and maintain family life and, second, a factual matrix consistent with that intention. Both matters are a question of fact and degree in each case. There is no requirement that both partners should reside in the same property (Re T&M Adoption [2010] EWHC 964 (Fam),  [2011] 1 FLR 1487).'

18. Sir James Munby, President, considered the definition of "couple" pursuant to section 54(1) in Re Z [2015] EWFC 73; in his judgment he said (at [13]) that the HFEA 2008 had brought the definition of "couple" in line with the definition of "couple" in section 144(4) of the Adoption and Children Act (ACA) 2002; he said that since the Marriage (Same Sex Couples) Act 2013 came into force on 13th March 2014 the definition in both Acts now extends to married couples of the same sex. The ACA 2002 defined 'couple' at s. 144(4) as follows; 'In this Act, a couple means; (a) a married couple, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.'"

The court acknowledged that there was limited reported case law concerning the definition of "enduring family relationship". It was submitted on behalf of the applicants that it was not necessary for the court to "read down" the statute (pursuant to s.3(1) of the Human Rights Act 1998) and that a straightforward reading of the statue applied to the relevant facts of the case would entitle the court to conclude that the applicants were in an enduring family relationship. The court examined the parliamentary debates using Hansard and concluded that Parliament's intention had been for the court to decide what amounted to an enduring family relationship. The court noted that in the present case the applicants' relationship had started (significantly, it seems) prior to the commencement of IVF treatment. When the children were born in January 2015 the applicants had been in a relationship for ten months and by the time they made the applications to the court for parental orders they had been together as a couple for fourteen months and living together for a year. By the time of the final hearing they had been in a relationship for almost two years.

Having satisfied herself that Parliament had intended the court to determine what an enduring family relationship was, Russell J concluded that the facts in this case indicated that the applicants were in an enduring family relationship.  The court considered the remaining s54 factors and made a parental order.


A & Another v C & Another [2016] EWFC 4

In A & Another v C & Another [2016] EWFC 4 Theis J considered applications for parental orders in respect of three children born in 2002 and 2004 (one aged 12 and twins aged 13) where the application for parental orders was made considerably later than the six months prescribed by statute under to s54(3) of the HFEA 2008.  

In considering whether to grant the applications, Theis J examined the ratio in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) where the President made it clear that each case must be considered on its own facts.  In the present case the applicants contended that in the early 2000s when they embarked upon surrogacy as a route to parenthood, surrogacy was not common. The children had been born following surrogacy arrangements in the US where orders had been obtained that conferred parental rights on the intended parents; they therefore did not think it necessary to require any additional orders once they were back in this jurisdiction.  It was only through reading an article in a Sunday newspaper earlier this year that the applicants were alerted to the need for a parental order.

Fortunately, the applicants were still in contact with the respondent surrogate and her husband, and all of the other s54 criteria were met with ease. In considering the public policy considerations that the case raised, Theis J observed:

"8.Whilst, of course, mindful of the public policy consideration of adhering to the six month time period set within s 54 (3) and the need not to discourage commissioning parents in surrogacy arrangements from making applications for parental orders promptly, I have to weigh those considerations against the welfare of these particular children. Section 1 of the Adoption and Children Act 2002 applies to parental order applications by virtue of the Human Fertilisation and Embryology (Parental Orders) Regulation 2010 (regulation 2 and schedule 1) which provides 'The paramount consideration of the Court must be the child's welfare, throughout his life'."

The court was satisfied that it was entitled to make parental orders in respect of the children.

The applicants requested that Theis J's judgment was made available in the public domain so as to ensure that other people in a similar position are encouraged to make applications to secure their legal relationship with children born through surrogacy arrangements.


Re A, B and C (UK surrogacy expenses) [2016] EWFC 33

A striking feature of the jurisprudence that has emerged over recent years in relation to surrogacy in this jurisdiction is that most of the reported cases tend to relate to applications for parental orders following an international surrogacy arrangement. Cases concerning domestic surrogacy arrangements are often determined by magistrates sitting in the Family Court and are therefore unreported.

In Re A, B and C (UK surrogacy expenses) [2016] EWFC 33 Russell J was concerned with three applications for parental orders in respect of three children born within six months of each other, following surrogacy arrangements entered into in this jurisdiction by the applicants. The key issue with which the court had to grapple was whether or not the expenses paid to the surrogates had been reasonably incurred.

The applicants met each of the surrogates (one in respect of each child) through a Facebook forum, by which would-be intended parents were introduced to potential surrogate mothers by the administrator of the forum.  In examining how much the surrogates had received in respect of their expenses, the court heard that the surrogates had been paid sums considered the "going rate" which was between £8,000-£15,000. On this point, Russell J observed (at paragraph 3):

"The law provides for no such tariff for expenses for UK surrogacy, or indeed any definition in respect of 'expenses reasonably incurred'. There is no universally acceptable figure to pay for surrogacy expenses in the UK irrespective of the circumstances in law, whether it is £15,000 or more or less."  (emphasis added)

Thus, from the outset of the judgment, Russell J put to bed the common misconception held by both surrogates and intended parents in this jurisdiction that there is a sum of money that is considered the "going rate".  Given the fact that "reasonable expenses" will inevitably vary from case to case, for a whole host of different factors, it would be difficult for there to be a universally acceptable figure to pay for a surrogate's expenses. 

The court was required to consider the fact that the level of payments to the surrogates was initially concealed by the applicants to the court and to the parental order reporter. However, the court found that the surrogates had not been part of any deception, and that all three of them were unequivocal in their position that the parental orders should be granted. 

In authorising the payments, Russell J observed:

"26. If there was any money paid to X, Y and Z it was for a residual amount over and above reasonable expenses amounting to a few hundred pounds at most. The court has a discretion to authorise payments in excess of expenses which has been thoroughly explored in case law. Section 54(8) HFEA provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the making of the order; any agreement required by subsection (6) above; the handing over of the child to the applicants, or, the making of any arrangements with a view to the making of the order, unless authorised by the court."

In respect of the public policy decisions that arose, Russell J considered the well established principles, and that a court should only refuse to make a parental order where there has been the clearest abuse of public policy. 

"29. The need for the court to consider issues of public policy extends to welfare and to ensure that commercial surrogacy agreements are not used to circumvent childcare laws in this country, resulting in the approval of arrangements in favour of people who would not have been approved as parents on welfare grounds under any set of existing law such as adoption. To paraphrase Hedley J, the court must be careful not to be involved in anything that looks like a payment for buying.  Such arrangements have been ruled out by Parliament and the court cannot be party to any arrangements which effectively allow them.

30.The statements of the applicants should have dealt with these issues at the outset and they should have set out fully and frankly the sums paid. The amounts paid for expenses reasonably incurred should have been set out in detail and each expense identified, with documentary evidence in support of the amounts paid exhibited to the statements. However I accept that the applicants were acting in good faith and without moral taint in their dealings with the surrogates and that part of the reason that they were not able to set out the evidence of the surrogates' expenses was because it was not available to them. I can see from their evidence that the parties had a very warm and close relationship during the course of each of the pregnancies."

What is plain from this judgment is that, whether in this jurisdiction or abroad, there must be a clear record of expenses from which the court can carefully identify the expenses that have been incurred.

Whilst the court had raised concern "whether the applicants had taken appropriate, child-centred decisions about 'building their family'" by having three children in the space of six months, the court was satisfied that the children's welfare demanded that parental orders were made.

As stated  in the exposition to Russell J's judgment, this case brings into sharp relief the ""surrogacy market" referred to by Moylan J in Re D (A Child) [2014] EWHC 2121 and could be considered to provide further illustration of the need for better regulation of surrogacy agreements in the United Kingdom recognising the reality that there is an existing market".

This is a particularly apposite observation given the current Law Commission project that is seeking views on whether the law governing surrogacy is keeping pace with social change.  The Law Commission is seeking views in relation to a number of issues, including surrogacy and the single parent following  Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam)  and whether a future project should consider the current regulation of each aspect of surrogacy arrangements. For more details visit the Law Commission's surrogacy webpage


Re Z (surrogacy agreements) (Child arrangement orders) [2016] EWFC 34

In Re Z (surrogacy agreements) (Child arrangement orders) [2016] EWFC 34 Russell J was again concerned with a domestic surrogacy arrangement and its fall-out. The applicants, who had twins through a previous surrogacy arrangement, met the surrogate through an online forum. The surrogate agreed to have embryos (created with the gametes of one of the applicants and an egg donor) implanted and thereafter became pregnant with twins.

The parties had, it seems, signed a surrogacy agreement which they found online. Such agreements are not enforceable in this jurisdiction under the Surrogacy Arrangements Act 1985.  The circumstances in which the surrogacy arrangement was reached was of significant concern, the court finding that the applicants' approach to the surrogate was "at the very least, potentially exploitative and they did little or nothing to ameliorate it" (at para 55) and that they had "set out to deceive" the surrogate, which was "indicative of their lack of consideration, concern and respect for X who was willing to act as their surrogate". Moreover, the court raised concerns in respect of the surrogate's learning difficulties which should have been obvious to the applicants.

The court heard how, during the course of the pregnancy, the surrogate had considered a termination, but did not do so, and then later miscarried one of the foetuses and was persuaded to tell the applicants that she had miscarried both by the woman (identified as 'W' in the judgment) who had initially introduced the applicants to the surrogate via the online forum. 'W' later performed something of a volte face and took against the surrogate and decided to inform the applicants that she and the surrogate had deceived them about the miscarriage.

There was a considerable lack of understanding as to the parties' legal positions, with the surrogate being under the false impression that she could face a term of imprisonment if she did not hand the baby over to the applicants at birth. As Russell J went on to observe, it was "palpably evident" that one of the applicants felt that he had "ownership" of the child and that the surrogate "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" (at para 76). The court also expressed concern as to the applicants' reluctance to acknowledge the surrogate as the child's mother despite the fact that the child had been living with the surrogate mother post-birth.

The consent element of the s54 criteria of the HFEA 2008 is fundamental in the court's assessment when considering whether a parental order can be granted – i.e that the surrogate has freely, and with full understanding of what was involved, agreed unconditionally to the making of the order. In the present case Russell J concluded that was not possible. Russell J observed:

"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."

Thus the key issue the court had to address was a question of welfare:  with whom the child should live (i.e. the applicants or the surrogate mother and her partner) and scrutinising the competing options, in much the same way Russell J had done previously in H v S (Surrogacy Agreement) [2015] EWFC 36.

Russell J concluded that it was in the child's best interests to remain with the surrogate mother as she was best placed to meet the child's emotional needs, with ongoing contact with the applicants. This conclusion was consistent with the recommendation of the child's guardian.

In terms of further orders, the court went on to make a parental responsibility order in respect of the surrogate mother's partner. Thus by the end of the proceedings there were three adults sharing parental responsibility for the child (the mother, her partner and the first applicant who was the biological father).


Conclusion

There are some limits to what the courts will allow – even in the context of surrogacy. But what each of these cases demonstrates, repeatedly, is that the child's welfare will always be the paramount concern of the court in its decision making.

6/10/2016