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Surrogacy and HFEA Update (March 2018)

Andrew Powell, barrister of 4 Paper Buildings, considers recent developments relating to surrogacy law, including new guidance, as well as the latest cases concerning administrative errors and the HFEA.

Andrew Powell, barrister, 4 Paper Buildings

Andrew Powell
, barrister, 4 Paper Buildings

H (A Child: Surrogacy Breakdown) [2017] EWCA Civ 1798 (17 November 2017) 
Like so many of the reported surrogacy cases in this jurisdiction, in H (A child: Surrogacy breakdown) [2017] EWCA Civ 1798 the court – on this occasion, the Court of Appeal –  highlights once more some of the complexities of surrogacy in the absence of any form of regulation.

The facts of this case can be summarised as follows. A and B were a male same-sex couple who entered into a surrogacy agreement with C and D who were a heterosexual married couple. A's sperm and a donor egg resulted in C's pregnancy with H.  The parties' relationship broke down subsequently and communication between them ceased.  After the birth, the solicitors representing C and D wrote to A and B to inform them that they no longer wished to follow the terms of the agreement and would not provide their consent to the making of a parental order (one of the essential ingredients under s54 of the HFEA 2008).

The matter came before Theis J, where the issues to be determined were where H should live and the amount of contact that should be afforded to the other couple, and whether there should be any restrictions on that couple's ability to exercise parental responsibility. Theis J concluded that the child should live with A and B and made a number of section 8 orders to limit C and D's ability to exercise PR.  

C and D appealed, and it was argued on their behalf that (at para 22):

(1) By limiting their clients' contact and fettering their parental responsibility, the judge had effectively made a parental order in all but name. 

(2) The judge should have striven to provide H with two homes and four parents.  Instead, she undertook no detailed analysis of the purpose of contact, neglected the Article 8 rights involved, and failed to explain why a level of 'identity contact' that marginalises C and D is necessary or proportionate.

(3) The criticism of C and D for being rigid in wanting their legal child to live with them was unwarranted, and the Judge did not fairly balance it against the undoubted shortcomings of A and B.  This imbalance reflected the Judge's treatment of the case as "a surrogacy gone wrong", rather than a case to be approached on normal principles.  It led her to adopt a punitive approach towards C and D for having withdrawn from the arrangement.

(4) With reference to the parental involvement presumption at s.1(2A) Children Act 1989, the Judge should have treated the case like any other case of parental breakdown, where separated parents are reminded of the duties, and where the court has powers to support and enforce its orders. 

(5) The specific issue orders in relation to the exercise of parental responsibility and travel abroad are too wide and insufficiently precise.

The appeal was dismissed, McFarlane LJ making the following observations at the outset of the judgment:

(i) The position stated by the Court of Appeal in Re N (a Child) [2007] EWCA Civ 1053 was reaffirmed.  The essential question in every case is: all things considered, which outcome will be best for the child?  The law does not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures.  The welfare principle applies with full force in such cases; indeed, the more unusual the facts, the greater the need to keep the child at the heart of the decision, and to ensure that the interests of others prevail only where they are in harmony with the interests of the child.

(ii) Although the appeal was trailed as involving novel legal issues about the interface between the Human Fertilisation and Embryology Act 2008 and the Children Act 1989, on examination these issues fell away and the argument ultimately boiled down to the question of whether the judge erred in her evaluation of the evidence. 

(iii) The judge rightly took a conventional welfare approach to an unconventional family structure.  Her decisions about where the child should live (not appealed) and about the role that should be played by the other family (the focus of this appeal) were ones that she was entitled to reach on the evidence before her.

The overall tenor of the Court of Appeal judgment was that the trial judge was entitled to come to the decision she did having evaluated the evidence and applied the relevant welfare principles.

The concluding remarks of the judgment are of note, with the Court of Appeal endorsing Theis J's comments from the first instance judgment, where her ladyship observed:

"This case is another example of the complex consequences that can arise from entering into this type of arrangement.  Even though C was an experienced surrogate, this case demonstrates the risks involved when parties reach agreement to conceive a child which, if it goes wrong, can cause huge distress to all concerned.  For all the adults involved, who all clearly love H, the one thing I know they will agree is that their dispute and this contested litigation has been a harrowing experience for them all.  This case is another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind."

The Law Commission
The timing of the judgment in Re H is apt given the long-awaited announcement from the Law Commission in December 2017 that surrogacy would be one of the projects in the 13th project of law reform.  In the report, published by the Law Commission and outlining the individual projects, the Commission observed [at page 21]:

"There are, therefore, significant questions relating to the procedure for the grant of Parental Orders to the intended parents. But these are only some of the issues that arise. Surrogacy arrangements also raise issues of children's rights to access information about their parentage, both genetic and gestational, while there are wider questions around the basis on which surrogacy arrangements should be permitted. International surrogacy arrangements bring into focus problems surrounding the nationality of children born to surrogates (including the risk of statelessness), bringing surrogate-born children into the UK, and the risk of exploitation of all the parties involved.

"Calls for reform, both nationally and internationally, are becoming louder and more urgent: in the House of Lords it has been said that "…we look to the future and to surrogacy in the UK being updated for the 21st century", and that surrogacy "…cries out for attention by the Law Commission for inclusion in its imminent next programme of law reform". Surrogacy is a widely discussed issue in the press and in Parliament, and has recently been debated by the Hague Conference on Private International Law and the Council of Europe. We take the view that the law relating to surrogacy is outdated and unclear, and requires comprehensive reform. Reform will deliver significant benefits of clarity, modernity and the protection of those who enter into surrogacy arrangements and, most importantly, of the children born as a result of such arrangements."

Work on the project is due to commence in Spring 2018 and is expected to take 2-3 years.

Y v Z & Ors [2017] EWFC 60 
Domicile is one of the areas in relation to parental order applications where the law is relatively well settled and the approach adopted by the court in relation to domicile of origin and domicile of choice is clear.

In Y v Z, the application before the court concerned an international family where there was litigation concerning the subject child in no fewer than three jurisdictions: England, New York and Florida. 

The applicants, Y and Z, were the intended parents in a surrogacy arrangement entered into in the US, with W, the surrogate mother. Pursuant to that arrangement, orders were made in Missouri, terminating the surrogate's legal parentage. Y was a country A national who was living and working in New York with the child, X, and his new partner, D. Z is a country B national, who was living and working in London. Z had not seen X since October 2015 (save for indirect webcam contact).

One of the issues to be considered by the court was the fact that neither Y nor Z had parental responsibility or any legal status in respect of the child in this jurisdiction.  Unless and until orders were made in this jurisdiction, under the factual matrix of this case, pursuant to s33 of the HFEA 2008, W remained X's mother.

The applications before Theis J were:

(i) an application for a parental order dated 15 February 2015, made jointly by Y and Z, and

(ii) the deemed application by Y for leave to withdraw that application. 

By the time the matter came on for final hearing it was accepted that all but two of the relevant criteria for making a parental order under s.54 HFEA 2008 were met. Z, who lived and worked in London, asserted this jurisdiction was his domicile of choice (i.e. he having relinquished his domicile of origin in country B) and that a purposive interpretation of 'home' can include a situation where one of the applicants is not currently in the same jurisdiction as the child concerned and is not having contact.

Y disputed these requirements were satisfied on the evidence and, in addition, raised the issue as to whether the court can make a parental order against the express wishes of one of the applicants.

Theis J highlighted in her judgment the consequences for X if the application for a parental order cannot continue, at para 69:

"(a) As a matter of English law neither Y or Z will have parental responsibility for X, notwithstanding it was intended by them both they would be factual and legal parents for her, and they both intended they would hold parental responsibility;

(b) Z will not be X's legal parent as a matter of English law;

(c) W will continue to be X's legal parent as a matter of English law, despite W's views that she does not wish to be considered as X's parent; and

(d) Despite his optimism Y does not have an automatic right to remain indefinitely in the US. If X came to live here, without a parental order her legal parental relationship would only be with W who takes no active part in X's life."

Ultimately,  Theis J concluded:

(i) Z had not established he had a domicile of choice in this jurisdiction at the time the application was made in February 2015. 

(ii) The hard facts relied on by Z, such as period of time, qualification, working, citizenship, ownership of property and paying of taxes, were not sufficient to establish that he intended to permanently and indefinitely reside here to support him establishing a domicile of choice. They had been elevated by Z to seek to support his assertion of a domicile of choice in the context of seeking to establish this court's jurisdiction to enable the parental order application to proceed.

(iii) The acquisition of domicile of choice was a serious matter and not to be lightly inferred. As Baroness Hale stated in Mark v Mark [2005] UKHL 42  "English law requires only that the intention [of the person claiming to be domiciled by reason of their intention to reside permanently in the UK] be bona fide, in the sense of being genuine and not pretended for some other purpose…"

(iv) It was more likely that Z retained his domicile of origin in Country B. 

In the light of these conclusions, her ladyship decided that the parental order application could not proceed and, in those circumstances, it was not necessary for the court to determine whether the requirement that X must have her home with the applicants under s 54 (4)(a) was met.

This case is of interest because it illustrates that whilst a parental order is the bespoke order for children born through surrogacy, the court will only go so far in terms of how broadly the existing statutory framework can be read, and particularly in circumstances where there is no agreement between the parties as to the outcome of the case.

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)
In my last update I wrote about the case of XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)  where the claimant sought damages in a civil claim before the Queen's Bench Division, that would enable her and her partner to enter into a surrogacy arrangement in America (California), she having harvested some of her eggs before undergoing chemotherapy.

Following an earlier Court of Appeal decision, the High Court rejected the argument that the claimant should be awarded damages to enter into a commercial surrogacy arrangement that would be unlawful in this jurisdiction. However, the court did award damages for the claimant undergoing two surrogacy arrangements in this jurisdiction (awarding £37,000 plus VAT for each arrangement).

Since that judgment was handed down, the trial judge has granted permission to appeal against the decision to refuse Californian surrogacy expenses and the cost of surrogacy using donor eggs.  In granting permission to appeal, the judge concluded that there was a public interest in the higher appellate courts examining the question of the recoverability of damages for the cost of commercial surrogacy where the arrangements had been made and enforced in a jurisdiction in which the activity was lawful. The outcome of the appeal is awaited.

Government guidance in relation to surrogacy in England and Wales
On 28 February 2018, the Department of Health and Social Care published guidance for intended parents, surrogates and health professionals about the surrogacy process in England and Wales. The document is significant in many respects as it illustrates the Government's acceptance of surrogacy as a legitimate route to parenthood. The guidance notes that:

"Surrogacy is increasingly becoming an option for starting a family for people who are unable to conceive a child themselves. This guidance is intended to give the reader key information about surrogacy and the relevant legal process in the UK.

The Government supports surrogacy as part of the range of assisted conception options. Our view is that surrogacy is a pathway, starting with deciding which surrogacy organisation to work with, deciding which surrogate or intended parents (IPs) to work with, reaching an agreement about how things will work, trying to get pregnant, supporting each other through pregnancy and then birth, applying for a parental order to transfer legal parenthood and then helping your child understand the circumstances of their birth. This guidance gives more information about each stage."

The guidance recommends that parties enter a surrogacy agreement (even though such agreements are not legally binding). This new guidance is welcomed by many in the surrogacy world and perhaps illustrates the steady increase in the number of people applying for parental orders since 2010. In 2016 there were 368 applications for parental orders compared to 167 in 2013.

Declarations of Parentage – statutory requirements not complied with
AI and AJ, Re Human Fertilisation And Embryology Act 2008 [2017] EWHC 3351 (Fam)

AI and AJ  were the 36th and 37th cases respectively to come before the President of the Family Division following Re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) and the now well-known line of cases concerning declaration of parentage where statutory requirements have not been complied with by fertility clinics.

AI and AJ were unrelated but were similar factually. As the President observed in the judgment, in each case the applicant, X, was a man who was not, at the relevant time, married to the respondent mother, Y. In each case X sought a declaration pursuant to section 55 of the Family Law Act 1986 that he is, in accordance with sections 36 and 37 of the Human Fertilisation and Embryology Act 2008, the legal parent of their child, C. 

The President found as fact in each case:

(i) that the treatment leading to C's birth was undertaken with full knowledge by both X and Y;

(ii) it was the intention of both X and Y that X would be C's legal parent;

(iii) from the moment the pregnancy was confirmed and following birth, both X and Y believed X was the other parent of C;

(iv) X and Y registered C's birth in good faith that they were both C's parents;

(v) the first they knew that anything was 'wrong' was when they were contacted by the clinic.

The case of AJ
The facts of the case were "on all fours" with the facts in  Re the Human Fertilisation and Embryology Act 2008 (Case J) [2016] EWHC 1330 (Fam), where Y had not ticked the consent box,  and the President relied upon paragraph 15 of that judgment, where his lordship observed:

"That there has been a mistake in this case in the completion of the Form WP is obvious, for the very purpose of completing the form is to give the consent indicated by the placing of a ? in the relevant box. And it is plain what was meant. After all, Form WP is headed "Your consent to your partner being the legal parent." What did Y think she was doing when she completed and signed the Form WP, if not to give her "consent to [her] partner being the legal parent"? The answer is obvious: by signing the Form WP she intended to and believed she was giving that consent. The only defect in the completed document is … a simple undetected clerical error. In the present case … this obvious mistake can, in my judgment, be 'corrected' as a matter of construction, and without the need for rectification."(Emphasis added)

The President granted the declaration sought and the clinic agreed to pay X's reasonable costs.

The case of AI
This case was similar with Case D, In re A and others (Legal Parenthood: Written Consents) [2015] EWHC 2602 (Fam) where Y's date of birth was provided in the box rather than the date the form was signed. In Case D the President had observed  "that this was a mistake is obvious, as is the 'correction' required to remedy the mistake". An additional issue in the case was that Y was married to a man, S. Section 35(1) of the 2008 Act provides that where a woman undergoing treatment was party to a marriage, then the husband "is to be treated as the father unless it is shown that he did not consent to the placing…of the embryo". That issue has been previously considered in G (Re the Human Fertilisation and Embryology Act 2008 (Case G) [2016] EWHC 729 (Fam). The President was able to conclude that it was clear from all of the documents provided by the clinic that the only parties involved in the treatment here were X and Y and there was no basis on which the court could conclude that S had consented. The declaration was made, and the clinic also  agreed to pay X's reasonable costs.