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‘Real dangers’ of informal surrogacy arrangements highlighted

A proper HFEA application ‘should be ... part of the skills set of a competent general practitioner’: Mrs Justice King

The "real dangers" of informal surrogacy arrangements have been highlighted in the case of JP v LP [2014] EWHC 595 (Fam).

Mrs Justice King said that it was to be hoped that all Health Authorities would soon have in place a multi-agency protocol to ensure that the welfare condition and the need for the adults to have advice and information would be met.

She added that surrogacy was "increasingly common" and an understanding of, and ability to make a proper HFEA application "should be as much a part of the skills set of a competent general family practitioner as is a step parent adoption."

The case concerned CP, a child born as result of an informal partial surrogacy arrangement. None of the parties had prior legal advice or counselling.

The surrogate (a close friend of those seeking to be parents) became pregnant following insemination with the genetic father's gametes.
The hospital at which CP was to be born asked the parties to provide a "surrogacy arrangement". Accordingly, an agreement was drawn up by solicitors. Mrs Justice King, giving judgment, observed that surrogacy arrangements are not enforceable by law and that, in drawing up and charging for the agreement, the solicitors instructed were committing a criminal offence under section 2 Surrogacy Arrangements Act 1985 which prohibits the negotiation of such arrangements on a commercial basis.

Three months after CP's birth the relationship between the genetic father and his wife (the "mother") broke down. She issued proceedings within which a shared residence order was granted and the parties undertook to regularise CP's legal status by applying for a parental order under s 54 of the Human Fertilisation and Embryology Act 2008 ('HFEA 2008). The application was not lodged until CP was 7 ½ months old and was thus beyond the statutory limit of 6 months from the date of birth. Neither party pursued the application, which was subsequently dismissed.

Further difficulties between the mother and father then gave rise to renewed Children Act proceedings, in which (no one having appreciated that the statutory limit had expired) the parents undertook to renew their application for a parental order.

The matter was then transferred to the High Court for consideration of how to regularise the status of the adults involved when no parental order could be made. Both the child and surrogate were joined as parties.

Mrs Justice King set out the legal "backdrop" provided by the HFEA 1990 and 2008. In t

Having considered all the options, King J decided that in these "wholly exceptional circumstances", she should endorse a proposal put forward by all parties (the mother and the father having been able – with the help of the Guardian and the benefit of expert legal advice – to set aside their differences). CP was to be made and to remain a ward of court; there was to be a shared residence order and all issues of parental responsibility were to be delegated to the mother and father. The surrogate was to be prohibited from exercising her parental responsibility without leave of the court.

For the judgemnt and a fuller summary of the judgment and legal reasoning, by Katy Rensten of Coram Chambers, please click here.