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Surrogacy Law /HFEA Update (February 2017)

Andrew Powell, barrister of 4 Paper Buildings, considers recent surrogacy cases in this jurisdiction, developments in the European Court of Human Rights, calls for law reform and recent judgments concerning administrative errors by fertility clinics.

Andrew Powell, barrister, 4 Paper Buildings
















Andrew Powell, barrister, 4 Paper Buildings

In this update I consider recent surrogacy cases concerning:

I also examine some of the recent cases concerning fertility clinics where administrative errors have resulted in parents applying for declarations of parentage.


Consent

In Re AB (Surrogacy: Consent) [2016] EWHC 2643 (Fam) Theis J was concerned with applications for parental orders in respect of twins born to a gestational surrogate. The twins were biologically related to both of the applicants, having been conceived using the gametes of each of the applicants. The now well-known criteria under s54 of the Human Fertilisation and Embryology Act 2008 for the making of a parental order were met in all but one area: consent.

The respondents to the application were the surrogate and her partner. Under s54(6) it is necessary that the respondents have "freely, and with full understanding of what is involved, agreed unconditionally to the making of the order". Whilst the respondents did not wish to have any involvement in the twins' lives, they did not wish to give their consent unequivocally to the making of a parental order as prescribed by the statue. They did however indicate that they were willing to consent to the making of an adoption order.

From the judgment it is clear that the relationship between the applicants and the respondents had deteriorated significantly during the course of the pregnancy. The order in place post-birth that secured the twins' placement with the applicants was a child arrangements order which afforded parental responsibility to the applicants (whilst the respondents still retained PR).

The court observed, as has been a repeated theme in cases of this nature (see for example Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73), that adoption would not be an appropriate legal remedy given that the applicants were already both biologically related to the twins.  In short, Theis J agreed with the position of the applicants that an adoption order would not fit the twins' life story. Theis J observed:

"29.. A parental order was devised specifically for a surrogacy arrangement, recognising the biological connection of the applicants as intended parents of the child. Whilst the respondents have indicated they would not object to an adoption order being made that does not reflect the reality, these children are the biological children of the applicants. An adoption order treats the children as if they were the children of the applicants, which they already are.

30. This issue arose in AB v CD [2015] EWFC 12 where I set out the differences between the two orders as follows at [70]:

i. '(3) …section 67 (1) ACA 2002 which provides 'An adopted person is to be treated in law as if born as the child of the adopters or adopter.' This is what demarks the difference between the two orders. Adoption orders create a presumption in law that the child is treated as if the biological child of the adopters. A parental order does not require that presumption to be made. Both orders are transformative, but a parental order proceeds on the assumption one of the applicants is the biological parent. That is one of the key criteria in s 54 HFEA. It doesn't change the child's lineage as an adoption order does; a parental order creates a legal parentage and removes the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.

(4) From the point of view of the child the orders are different. An adopted child is seen to have had a family created for it, whereas in a surrogacy arrangement the child's conception and birth has been commissioned by the parents, the child has a biological connection and the same identity as one of the parents. The latter arrangement is more congruent with a parental order than an adoption order.

(5) These differences are important welfare considerations from the child's perspective. These are the reality of the identity issues children will need to resolve. In surrogacy situations the court by making a parental order settles the identity3 issue and does not leave other fictions to be resolved, which could be the case if an adoption order was made in these situations.'

31. As has been referred to in a number of cases adoption orders in these circumstances is inappropriate as, like the applicants in this case, they would be seeking to adopt their own children (see In Re A [2015] EWHC 2602 (Fam) [71])."

The proceedings were adjourned generally with liberty to the parties to restore the matter at a future date. Save for law reform or the respondents' position in respect of consent changing, the applicants will only retain PR under the existing child arrangements order.

Theis J concluded:

"…From the perspective of these children's lifelong emotional and psychological welfare parental orders are the only orders that accurately and properly reflect the children's identity as surrogate born children."

The case re-emphasises the well-established notion that a parental order is the bespoke order for children born through surrogacy whilst also highlighting that consent lies at the bedrock of the court's consideration when making such an order. Whilst many cases in the last two years have illustrated that the courts are prepared to adopt a purposive approach when considering an application (e.g. when the applicants do not live together or the application is made after 6 months), it is not, as this case highlights, possible to proceed with an application for a parental order without consent which constitutes a vital and fundamental element.


Domicile

In AB & Anor v GH [2016] EWHC 2063 (Fam) Theis J examined the now well-established law in relation to domicile. The applicants had applied for parental orders following a gestational carrier arrangement in the USA. The surrogate was the respondent to the application.  Under s54(4)(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man. The applicants' domicile of origin was Germany. However, they argued that one of the applicants (referred to as 'CD' in the judgment) had acquired domicile of choice in this jurisdiction even though they had not lived here since 2013.

The court was satisfied, having heard oral evidence from the applicant asserting that they had acquired and retained domicile of choice in this jurisdiction, for the following reasons:

Theis J observed that whilst she considered that the strands that brought together a case for domicile of choice in this jurisdiction were "close to the margin", Her Ladyship, having heard oral evidence, was persuaded to find that domicile of choice was retained in this jurisdiction. This case emphasises that the question of domicile is one based on fact, and where there is uncertainty or ambiguity as to domicile the court is more likely to require oral evidence to be satisfied that domicile is established and/or retained.


Developments in the European Court of Human Rights

In an earlier update (February 2015), I wrote about Paradiso and Campanelli v Italy (application no. 25358/12), an Italian surrogacy case, where the ECHR ruled that a de facto family life existed between the commissioning parents and the child (thereby engaging Article 8), even where the child had spent only 6 months with the commissioning parents.

The case concerned the placement in local authority care of a 9 months old child, who had been born in Russia following a gestational carrier arrangement, where it subsequently emerged that the commissioning couple had no biological relationship to the child. As a result the child was under a guardianship order and placed in a children's home. The commissioning parents were not informed of the location of the child or permitted contact. The child later received a new identity.

In the Chamber judgment of 7 January 2015  in respect of the applicants' complaint regarding the removal of the child, the court held (by 5 votes to 2) that a de facto family life existed between the couple and the child. However, the finding of a violation of Article 8 did not oblige the Italian authorities to return the child to the commissioning parents, given that since 2013 the child had been with a foster family, with whom he had developed emotional ties. The applicants received a total of €30,000 in damages (€20,000 in respect of non-pecuniary damage and €10,000 in respect of costs and expenses).

However, the case came before the Grand Chamber and judgment was handed down on 24 January 2017.  The Grand Chamber held, eleven votes to six, that there had been no violation of Article 8 (right to respect for private and family life) of the ECHR.

The decision overturns the earlier January 2015 decision. In its ruling the court determined that the absence of any biological link between the couple and the short period of time that the child was in their care ultimately did not give rise to rights under Article 8 for the commissioning couple or the child.


Law reform 

Single applicants
The case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) reported last year paved the way for law reform in respect of the requirement under s54 of the HFEA 2008 that applications for a parental order can only be made by either i) a husband and wife; ii) civil partners/ same sex marriage; or iii) two persons in an enduring family relationship. In that case a single applicant father sought declaratory relief by way of a declaration of incompatibility under the Human Rights Act 1998 in that s54(1) and (2) of the HFEA 2008 was incompatible with the child and the father's rights. In summary the Government conceded that the statutory provision was incompatible with Article 14 (discrimination) taken in conjunction with Article 8 (family life) of the ECHR.

The topic of law reform in relation to surrogacy was debated in the House of Lords in December 2016.  Much of the debate focused on what we now as lawyers regard as axiomatic: that a parental order is a transformative order – a bespoke or tailor made order in respect of children born through surrogacy. Cross bencher, Lord Brown of Eaton-under-Heywood (former Justice of the Supreme Court) observed:

"But this is far from the only problem that arises in this ever-expanding, sensitive and profoundly important area of our law. As has rightly been said, parental orders are transformational; they go to the very identity of the child as a human being. Another problem encountered was the inability of the court to make a parental order in favour of a single father, as opposed to a recognised couple, declared by Sir James Munby in the case of Z this May to be incompatible with the father's and child's rights under the European Convention on Human Rights."

Baroness Chisholm of Owlpen stated:

"The third strand of activity concerns the Government's response to the recent High Court judgment that declared that a provision in the Human Fertilisation and Embryology Act 2008—which enables couples but not single people to obtain a parental order following surrogacy—is incompatible with the Human Rights Act. We will, therefore, update the legislation on parental orders to ensure that it is compatible with the court judgment. I can confirm that the Government will introduce a remedial order to achieve this, so that single people can apply for parental orders on the same basis as couples. The remedial order will be subject to consultation and will include transitional arrangements, which would put all single people on the same footing and allow a reasonable time period to apply. The House will recognise that there are complexities and a considerable number of consequential amendments to other pieces of legislation, so our current plan is that the remedial order will be introduced to Parliament in early 2017. This strand of work will be undertaken separately to the Law Commission's considerations of a potential wider review of surrogacy. (emphasis added)"

It's not clear when the law will actually be changed but it will certainly mark a significant change in the law once implemented. Whilst there have been mixed views from social commentators in the media, some suggesting that it is an attack on 'traditional' family values, a change in the law addresses the inequality that has existed, recognising and affording single men parental rights who have children through surrogacy; particularly when this is juxtaposed against a legal landscape where single men and women can adopt and single women can have fertility treatment. Essentially it should be regarded as a welcomed change that ensures the law reflects contemporary society, but most importantly of all, that children and their families are afforded the right legal recognition that reflects the reality of their family life.

Hague Experts' Report on Parentage/ Surrogacy Project
For sometime there has been a debate whether it is possible to establish an international/ cross-boarder continuity approach with regard to children's legal parentage and international surrogacy cases. There have been a number of papers published by this particular Hague Experts' group in relation to parentage and surrogacy. Their latest meeting this month was attended by no fewer than 19 experts representing 19 states  from various regions.

Given the different international approaches to surrogacy cases, any progress that can be made towards a international legal instrument may take some time. However, the group concluded their latest meeting and agreed the following recommendations:

a) in principle, on the feasibility of developing a binding multilateral instrument dealing with the recognition of foreign judicial decisions on legal parentage;

b) that owing to the diversity of approaches with respect to the determination of legal parentage and the recognition of the legal parentage when recorded in a public documents, further consideration and discussion are needed;

c) that owing to the complexity and the diversity of approaches by States in cases of international surrogacy arrangements, definitive conclusions could not be reached at this meeting as to the feasibility of the possible application of future agreed general private international law rules on legal parentage to international surrogacy arrangements and the possible need for additional rules and safeguards in these cases and in cases of assisted reproductive technology. The Group concluded that further consideration and discussion of these matters are needed.

It is clearly an ambitious task that lies ahead, but it will no doubt be interesting to see what progress is made towards achieving, so far as it is possible, legal comity in respect of recognition and legal parentage concerning international surrogacy arrangements.


Consent forms and the Human Fertilisation and Embryology Authority

Cobb J's decision in  AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), [2013] 2 FLR 1357,   brought to the public's attention, and indeed to the attention of the HFEA, some of the "shortcomings" of clinics across the country where they had failed to comply with the conditions of their licence granted by the HFEA. The impact of non-compliance in these cases was significant, in that it often left children conceived through IVF using donor sperm, in limbo as to whether the non-compliance in obtaining consent to legal parenthood prior to treatment commencing, prevented the non-biologically related parent from being recognised as the child's parent. 

As the President of the Family Division observed in In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam), following Cobb J's judgment in AB v CD  (see also Theis J's judgment in X v Y v St Bartholomew's Hospital Centre for Reproductive Medicine [2015] EWFC 13), the HFEA required all 109 licensed clinics to undertake an audit of their records. 46% (51 out of 109) identified anomalies in their records.  The President's judgment in In re A and others sets out the difficulties that have occurred including lost or mislaid forms as well as the complete absence of WP or PP forms but the court being able to rely on an internal consent form that recorded the correct information.

The recent cases that have emerged continue to highlight some of the complexities in these matters. In the Matter of the Human Fertilisation and Embryology Act 2008 (Case K) [2017] EWHC 50 (Fam), came before the President of the Family Division where an application was brought by a father (supported by the mother) seeking a declaration of parentage pursuant to s55A of the Family Law Act 1986.  This was the twenty fourth case of this nature that has been before the President (with other reported cases before other judges  of the Family Division – see for example Pauffley J's judgment in F v M & Others [2015] EWHC 3601 (Fam) and Peter Jackson J's judgment in D v D (Fertility Treatment: Paperwork Error) [2016] EWHC 2112 (Fam)).

In this particular case the Registrar refused to register the applicant as the children's father as they were not able to produce relevant paper work. The matter came before the President sitting in the Family Division and Administrative Court, and the Registrar General was joined as an interested party. 

The Court granted the declaration of parentage and quashed the decision of the Registrar to register the birth of the children without entering the applicant's name as father, so that the entry in the register was deleted. An understandable complaint raised by the applicants was that the original registration meant that it was clear that the children were conceived using donor and sperm and denied the applicants the opportunity of telling them in their own time, or not at all.   

In In the Matter of the Human Fertilisation and Embryology Act 2008 (Cases P, Q, R, S, T, U, W and X) [2017] EWHC 49 (Fam) the President considered 8 cases where similar issues had arisen as set out in His Lordship's earlier decision of In the matter of the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam). In the latest set of cases no new principle arose in seven of the eight cases. However Case U was somewhat different as it related to a second child born following a later treatment. The PP form could not be found (the form signed by the partner) and the question was whether the PP form that had been signed during the first treatment cycle could operate as valid consent in the latest treatment cycle. The President found that the PP form could continue to operate as consent so long as it had not been withdrawn (see para 19).

The Court found that it was able to make a declaration of parentage in each of the cases.

In  Case V (Human Fertilisation And Embryology Act 2008) [2016] EWHC 2356 (Fam)  where the  court found that the relevant form had been lost or mislaid, the President concluded his judgment, observing:

"The bureaucrats, administrators, and lawyers involved need to understand the immense emotional impact on the ordinary people unwillingly caught up in these cases of the sudden and profoundly disturbing discovery that something has gone 'wrong'. We must, everyone involved in the process must, do everything appropriate to ensure that, once the proceedings have started, these cases are dealt with as quickly and smoothly as possible. It may be that, as part of the approach, the court should in future be invited to make costs orders 'as the case goes along."

Each of these cases highlight the emotional anguish of parents who have had their lives turned upside down as result of administrative errors, but happily the decisions also highlight the desire of the courts to bring about a remedy as expeditiously as possible.  In each of the cases the clinics or hospital trust has paid for the costs of the litigation.


Conclusion

These latest set of cases demonstrate how socio-cultural notions of family life continue to evolve and that there is, happily, recognition in this jurisdiction at least, that it is important for children and their parents to be afforded optimum legal recognition. Internationally it is a much bigger question with no uniform approach to how legal parentage should be recognised.

22/2/17