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Re DM and LK [2016] EWHC 270 (Fam)

Application by the genetic parents for a parental order in respect of a child born in October 2014). The respondents (the surrogate mother and her husband) did not oppose the application; however the case required careful consideration due to the improper procedures followed during the transfer process. The parental order was made.

Relevant facts
In 2012, LK and her then husband (not DM) entered into a surrogacy agreement with the respondents, Mrs and Mr J, pursuant to which two embryo transfers took place at a clinic in Cyprus (the Genesis Centre for Fertility and Human Pre-Implantation Genetics). Neither transfers were successful and in 2013 LK and her then husband divorced. LK subsequently met DM, and having decided to pursue surrogacy, they travelled to Cyrpus in 2014 to donate their gametes at the clinic.

LK informed the court that at the time of the transfer the clinic had advised her that she did not need to inform SJ that the male gametes were no longer from her former husband (as per the original surrogacy agreement) and were instead from her new partner, DM. LK stated that although initial legal advice was the same as the clinics', the advice then changed to saying she should inform SJ that DM was the genetic father, which she did, at which point SJ was 7 months pregnant with X.

SJ was shocked and upset at this news. A new surrogacy agreement that referenced DM was drawn up and signed in September 2014 at which time the parties also agreed the care and delivery plan for X. Following X's birth she has been in the care of LK and DM.

The application for a parental order was issued in April 2015, listed before Mrs Justice Theis in July 2015 where she joined X as a party and provided for the parties to file statements and directed the court parental order reporter to file a further report, as she had been unable to reach any recommendations in her first report (filed June 2015).

The parental order reporter Ms Baker had acted as witness when the respondents had signed the A101 consent form in June 2015. She then arranged a meeting attended by LK and Mr J in November 2015 at the end of which Mr J made it clear that he and his wife supported a parental order being made. Ms Baker's second report to the court therefore recommended that a parental order be made.

The court considered whether a parental order should be made having regard to the criteria at s.54 of the Human Embryology and Fertilisation Act 2008:

S.54 (1): The court was satisfied that the embryo transferred to Mrs J was created using the gametes of both LK and DM and Mrs J carried X until her birth;

S.54 (2): LK and DM lived in slightly unconventional circumstances in so far as DM only lived with LK from Wednesday – Friday each week and on alternate weekends, due to family commitments arising from previous relationships. The court was satisfied as a question of fact that LK and DM had been in a relationship for two years and had introduced their respective children to each other and accepted that LK and DM had a shared commitment to cohabiting in the future, having embarked on the surrogacy process with the sole intention of raising X together. Accordingly s.54(2)(c) was made out.

S.54 (3): The application was made on 8 April 2015, within six months of X's birth.

S.54 (4)(a): The court accepted that X lived full time with LK and that DK joined them from Wednesday to Friday each week and on alternate weekends. The court accepted that this amounted to substantial time, particularly as X did not have a home with anyone else.

S.54(4)(b): DM was born in the UK and this jurisdiction is his domicile of birth.

S.54 (5): Both LK and DM are over 18 years.

S.54(6): The court made its view very clear that Mrs and Mr J should have been informed of the genetic changes in the embryo prior to it being transferred. The court accepted however that in June 2015 Mrs and Mr J had signed the form A101 consent form with the knowledge that such information had been withheld from them at the time of transfer, and considered it relevant that they had not subsequently sought to renege from that agreement in conversation with the parental order reporter or through these proceedings, and in fact remained consistent in their support of a parental order being made.

S.54(8): LK and DM paid the respondents a total of £13,000 which comprised of payments to cover the childcare costs incurred by SJ (a child minder taking her other children to/ from school), loss of earnings, and expenses incurred for maternity wear, petrol, parking, taxis and some food. The court accepted the position of all the parties that the payments received were for expenses and nothing more.

Accordingly all the s.54 criteria were met.

In considering whether X's lifelong welfare (the court's paramount consideration under s.1 ACA 2002) would be best met by the making of an order, Mrs Justice Theis relied on the observations and recommendations of Ms Baker, the fact that the respondents had made it clear that they did not regard themselves as X's parents, and held that the 'transformative' nature of a parental order clearly met the lifelong welfare needs of X. Accordingly the parental order was made.

Summary by Esther Lieu, barrister, 3PB

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: ZC15P00461
Neutral Citation Number: [2016] EWHC 270 (Fam)

Sitting at the Royal Courts of Justice

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/01/2016


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DM  1st Applicant

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LK     2nd Applicant

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SJ 1st Respondent

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OJ 2nd Respondent

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(by Her Children's Guardian) 
3rd Respondent

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Dr Bianca Jackson (instructed by Howard Kennedy LLP) for the 1st & 2nd Applicants
Ms Frances Harris
(instructed by Reeds Solicitors Office) for the 3rd Respondent

Hearing date: 13th January 2016
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Mrs Justice Theis DBE:
Introduction and Summary of Decision
1. This matter concerns an application for a parental order by DM and LK, concerning X born 9 October 2014.

2. The hearing took place on 13 January 2016 when I made a parental order, with reasons to follow. This judgment sets out those reasons.

3. The respondents to the application are SJ and OJ, the surrogate mother and her husband, and X by her Children's Guardian, Sylvia Baker.

4. X was born following a surrogacy agreement between DM, LK and Mr and Mrs J. Although she was born in this jurisdiction, the embryo transfer took place at a clinic in Cyprus, called the Genesis Centre for Fertility and Human Pre-Implantation Genetics (the Clinic). At the time of this arrangement there were no statutes and/or regulations regarding surrogacy in Cyprus. That changed in May 2015 when provisions were made to regulate these arrangements through a system that permits altruistic surrogacy; commercial surrogacy is prohibited.

5. The original surrogacy agreement entered into in 2012 was between LK, her then husband and Mr and Mrs J. There were two embryo transfers, created using the gametes of LK and her then husband. Both were unsuccessful. LK and her husband separated in mid 2013 and have since divorced.

6. LK subsequently met DM. Early in their relationship they discussed having children. They decided to pursue surrogacy and travelled to Cyprus in January 2014 to donate their gametes at the Clinic. According to LK she asked the doctor at the Clinic whether the surrogate should be informed that the embryo was created from DM's genetic material, rather than her former husband's. She reports she was told that was not necessary and that she and DM were 'surprised' but 'relieved' by that advice. Their relief was from concerns that any delay may impede their chance of a successful transfer. It has not been possible to get any information from the clinic regarding this advice. Written requests have not been responded to.

7. According to LK the advice from the Clinic mirrored the legal advice she was getting at that time. According to her, that advice subsequently changed when LK expressed concern to her previous solicitors about giving her former husband's name to the hospital where X was due to be born. She states the legal advice changed to that she should inform the surrogate mother that DM was the genetic father. She did this when Mrs J was 7 months pregnant.

8. Mrs J informed the parental order reporter, Ms Baker, she was very upset and shocked to learn of this from LK; initially she did not want to have any contact with LK other than via her husband, Mr J. After further consideration she became concerned about the lack of a surrogacy agreement that named DM. She insisted there was a fresh surrogacy agreement, which the parties then entered into in September. The care and delivery plan at the hospital was then updated.

9. Following X's birth she has been in the care of LK and DM albeit, for reasons which I shall explain below, they have had to maintain separate homes due to their responsibilities to their older children, from their previous relationships.

10. The court has had the benefit of two detailed and perceptive reports from the parental order reporter, Sylvia Baker. She was instrumental in arranging and facilitating a recent meeting between the parties; in the end LK and Mr J attended. It was a fruitful meeting where both parties were able to address the issues they wanted to discuss and agreed to keep in touch.

11. Mr and Mrs J signed the consent form A101A on 4 June 2015. It was witnessed by the parental order reporter.

12. For the reasons set out below the criteria under section 54 Human Embryology and Fertilisation Act 2008 (HFEA 2008) are met and I am satisfied that X's lifelong welfare needs are met by the court making a parental order.

13. It was of great concern to this court, as it was to the parental order reporter, that a situation had arisen whereby Mrs J had embryos transferred to her that were different than what she understood to be the position under the agreement she had signed with LK and her former husband. It was of even more concern that this was done, according to LK, on the advice of the doctor at the Clinic and her previous solicitor. The court has not been able to investigate this matter as the Clinic has not responded to requests for information on this issue.

14. The fact that the respondents consent to the making of a parental order has limited the need for the court to consider this issue in any more detail. The position may have been very different if that was not the case.

15. I have no doubt prior to the embryo transfer Mr and Mrs J should have been informed of the change in genetic material and, if required, a new agreement should have been entered into. This failure to disclose obviously caused Mr and Mrs J enormous distress, to learn during the pregnancy the position was not as they understood it to be. At their recent meeting Mr J made it clear that as far as they were concerned X was not their child, she had always been LK and DM's child and that he and his wife wanted a parental order to be made.

16. Once again this case highlights the difficulties that can occur in this type of arrangement and the need for there to be complete transparency on both sides prior to any significant steps being taken.

Relevant Background
17. LK is 44 years. Until 2013 she was married to Mr K and they had two children, now aged 11 and 13. Since their separation in 2013 the children primarily live with her, spending alternate weekends with their father.

18. DM is 53 years. He has two children from a previous relationship, age 11 and 15 who primarily live with their mother. They stay with him on alternate weekends and the youngest stays with him for three days each week. When he is not caring for his children he stays with LK and X.

19. Following the birth of her last child LK was hoping to have more children, but sadly suffered a number of miscarriages. She received medical advice in 2012 that she should not attempt to conceive naturally again.

20. A doctor at the Hammersmith Hospital recommended surrogacy and suggested the Clinic in Cyprus. They engaged a surrogacy agency called Cyprus Surrogacy to arrange this; it was through that agency that they were introduced to Mr and Mrs J.

21. Following a successful meeting with Mrs J the parties signed a standard form surrogacy agreement.

22. They had two unsuccessful embryo transfers in 2013.

23. LK separated from her husband in the summer of 2013. They subsequently divorced.

24. LK and DM met in late 2013 and early in their relationship discussed having children. They decided to pursue surrogacy and went to the Clinic in January 2014 to donate their genetic material. In her statement LK describes asking a doctor at the clinic whether Mrs J should be informed of the change and being told that was not necessary. She said that although they were surprised by this advice they accepted it. Although her current solicitors have written to the Clinic to seek further information about this, they have received no response.

25. LK states she remained concerned that Mrs J had not been told of the position about the change in genetic material. In her statement she says her then solicitors advised her that she did not need to tell them.

26. LK attended the first meeting at the hospital where X was due to be born. She said she felt uncomfortable giving incorrect information about who the biological father was. She sought further legal advice after that meeting and was advised that she should inform Mrs J.

27. LK wanted to inform Mrs J in person, which she did. Mrs J described to the parental order reporter her understandable distress on learning of this. In a document she sent to the court in July 2015 she described how let down she felt at that time. She felt unable to have any direct contact with LK for a few days and then became concerned that she was carrying a child for which there was no agreement about between the parties. The surrogacy agency she had been dealing with had closed down.

28. The hospital was notified by LK of the correct information regarding the biological father.

29. The parties met in September and signed a surrogacy agreement.

30. Following X's birth she has been in the full time care of LK. DM has spent such time as he can with them, when he does not have responsibilities for his own children. In their statements both LK and DM make it clear that they intend to live together full time, once their respective responsibilities allow this.

31. The parental order application was issued in April and the matter listed before me in July 2015. I joined X as a party and made directions for Mr and Mrs J to be served. I directed detailed statements from LK and DM and gave Mr and Mrs J the opportunity to file statements in response. Ms Baker had filed a report in June in which she was unable to make any recommendation. She was directed to file a further report.

32. As part of her enquiries for her first report she had met Mr and Mrs J and they had signed a form A101A consent form on 4 June 2015, which was witnessed by Ms Baker.

33. Apart for their email in July Mr and Mrs J have not filed any documents or attended any hearing. They have been served with all the statements, reports and orders.

34. Ms Baker arranged a meeting between the parties in early November which in the end could only be attended by LK and Mr J.  At that meeting Mr J was able to describe how they felt about not being informed at the time of the transfer about DM being the biological father, and they discussed what appears to have been a misunderstanding about communication after X's birth; LK thought photographs and messages she had sent had been received when they may not have done. They exchanged updated contact details. Mr J was able to explain that although he and his wife did not regard X as their child they would like to be kept informed about X which LK agreed to. Mr J made it clear that he and his wife supported a parental order being made.

35. In her second report Ms Baker recommends a parental order is made.

Legal Framework
Section 54 criteria
36. There is no issue that the following criteria are met:

(i) s 54 (1) the embryo transferred to Mrs J was created using the gametes of both LK and DM and Mrs J carried X until her birth.

(ii) s 54 (3) the application was made on 8 April 2015, within six months of X's birth

(iii) s 54 (4) (b) DM was born in the UK and this jurisdiction is his domicile of birth.

(iv) s 54 (5) both LK and DM are over 18 years.

37. The remaining four criteria require more detailed consideration by the court.

Section 54(2)(c): The applicants' relationship
38. The court needs to be satisfied that they are 'two persons who are living as partners in an enduring family relationship'. There is no statutory definition; it is a question of fact for the court.

39. Dr Jackson, on behalf of the applicants, submits they have been in a relationship for over 2 years, they have introduced their respective families to each other and live together as a couple as much as their respective child and work commitments permit this to happen. Their intention is to live together in the future, when their family circumstances allow. They embarked on the surrogacy process together with the sole intention of raising X together, which they are doing within the context of their larger families. There was a brief separation in July 2015; this is explained in their statements.

40. Ms Baker in her most recent report states 'Whilst I have noted the difficulties in July 2015 between the applicants they remain in what appears to be a very committed relationship with each other (since the summer 2013). I accept that the applicants are not living together under the same roof 7 days a week however DM does live with LK Wednesday to Friday each week and at weekends he is not caring for his other two daughters at his home. I observe that it is not uncommon in many families for one of the parents to live away from the family home for periods of time due to work or other commitments and it could not be suggested that such circumstances would defeat the suggestion of an enduring family relationship'.

41. On the information the court has it is clear the applicants are in a committed relationship, their intention is to remain in that relationship and, as soon as their circumstances permit, to live together full time. They spend such time as they are able to together, remain in regular contact when they are not together and are obviously committed to each other and X. This requirement is met.

Section 54 (4) (a): The child's home must be with the applicants at the time of the application and the making of the order
42. X lives full time in LK's home and DM joins them from Wednesday to Friday each week and on alternate weekends. Other times he has responsibilities towards his children from his previous relationship and cares for them at his home.

43. Dr Jackson submits that the amount of time the applicants spend together is substantial enough that the child's home is with both of the applicants. X does not have a home with anyone else. Reliance is placed on what Sir James Munby stated in Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam) paras 66 – 68 and what I said in A & B (No 2-Parental Order)[2015] EWHC 2080 (Fam) paras 43, 44, 46 – 48

44. In the circumstances of this case X had her home with the applicants at the time of the application and now. The fact that DM has to split his time between his two households does not mean X does not have her home with him. Even if that is not right, the European Convention applies and the statute can be 'read down' to achieve this result, as Sir James Munby did in Re X (ibid) para 68. Family life within the meaning of Art 8 of the European Convention is established between the applicants and X (see Kroon and Others v the Netherlands (Applications No 18535/91) [1994] ECHR 35, (1994) EHRR 263 the Strasbourg Court accepted family life existed between two parents and their children even though the parents had never married, did not cohabit and lived in separate houses).

Section 54 (6): Free and fully informed consent
45. I have made clear the court's view that Mr and Mrs J should have been informed of the genetic changes in the embryo prior to it being transferred. The distress this caused to Mr and Mrs J is clearly and powerfully articulated in the papers.

46. Despite that understandable distress both Mr and Mrs J signed the Form A101A consent form in the presence of the parental order reporter on 4 June 2015. They signed that consent with the knowledge that the genetic details had been withheld from them at the time of the transfer. They have had time to reflect further, write to the court and attend the meeting arranged by Ms Baker in early November. On none of those occasions have they withdrawn their consent or indicated that they did not understand what the consent involved.

47. In fact the evidence goes the other way: even though they were upset and distressed by not being told, they have remained consistent that they regard X as LK and DM's child and they fully support a parental order being made.

48. I am satisfied this requirement is met.

Section 54 (8): the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received
49. The applicants paid a total of £13,000 to Mr and Mrs J. The breakdown of how those payments were made is set out in the papers; essentially monthly payments of £400 during the pregnancy with the balance after the birth. Ms Baker has seen evidence that these payments were received by Mr and Mrs J.

50. Mr and Mrs J have not kept any receipts but have described to Ms Baker how the monies were used 'Mrs J was of the view the breakdown of the expenses she incurred was 3,250 for child care expenses as the children would be taken to school each morning and a carer would collect them in the afternoon [during the pregnancy]. Mrs J also told me she had incurred loss of earnings…and claimed £7,500 to cover this cost….[she] informed me she had incurred other expenses for maternity wear, petrol costs, hospital parking as well as taxi costs for amniocentesis tests. [she] recalled extra money for healthy eating and food cravings'.

51. No one has suggested that these payments were other than for expenses reasonably incurred. I agree. It is clear they were used to cover expenses incurred as a direct result of Mrs J carrying X.

52. All the section 54 criteria are met.

53. X's lifelong welfare is the court's paramount consideration under section 1 of the Adoption and Children Act 2002. This issue can be taken relatively shortly as there is no issue about this.

54. In her most recent report Ms Baker states at paragraph 21

'It is clear from my observations and discussions with the applicants that X is a dearly wanted and loved child and has a positive attachment with both her parents. X is also an important person to wider families as well. LK and DM are the only carers that X has known and she looks to them for all her needs to be addressed and met.  In my view, X's needs are addressed to a high standard, by both LK and DM, who clearly only want the very best for their daughter.'

55. Mr and Mrs J have made it clear they do not regard themselves as X's parents.

56. A parental order was specifically devised for surrogacy arrangements. It is a transformative order with the effect that the child is treated as though born to the applicants. This order clearly meets the lifelong welfare needs of X and is the order the court made.