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Surrogacy Law Update (February 2015)

Andrew Powell, barrister of 4 Paper Buildings, reviews recent important judgments concerning surrogacy including the President's landmark decision in Re X.

Andrew Powell, barrister, 4 Paper Buildings

Andrew Powell, barrister, 4 Paper Buildings

Since the last surrogacy update the most important case in the world of surrogacy has been the President's decision in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam). The decision has been welcomed by commissioning parents, academics and lawyers as constituting a common sense approach to some of the more rigid aspects of the statutory framework that governs surrogacy in this jurisdiction.

This update will look at Re X in detail and consider what we can expect from future cases in light of this landmark decision.

Re X
The main issue that arose in Re X concerned an application for a parental order made out of time. Section 54 (3) of the Human Embryology and Fertilisation Act 2008 stipulates that the application must be made within 6 months of the child being born. The application in Re X was made over 2 years after the child's birth.

In exploring whether it was open to the court to employ rules of statutory interpretation essentially to "read down" the provision, the President observed:

"The starting point is clear and remains essentially unchanged from that identifiedDharmaraj v Hounslow London Borough Council  by Lord Penzance in Howard v Bodington (1877) 2 PD 203 and most recently re-stated by Sir Stanley Burnton in Newbold and others v Coal Authority [2013] EWCA Civ 584, [2014] 1 WLR 1288. I must consider section 54(3) having regard to and in the light of the statutory subject matter, the background, the purpose of the requirement (if known), its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of non-compliance on the parties. The question, as posed by Lord Steyn in Regina v Soneji and another [2005] UKHL 49, [2006] 1 AC 340, is, Can Parliament fairly be taken to have intended total invalidity? As Toulson LJ put it in [2011] EWCA Civ 312, [2011] PTSR 1523, Is any departure from the precise letter of the statute, however minor, to be fatal? And the assumption, as Sir Stanley observed, must surely be that Parliament intended a "sensible" result." (per Sir James Munby at para 52)

The President later opined:

"Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical." (Per Sir James Munby at para 55)

The President concluded that section 54(3) did not have the effect of preventing the court from making a parental order merely because the application is made after 6 months.  However, the scope of the President's reasoning did not end there. His lordship also concluded that if his reasoning in respect of a straightforward application of the principle enshrined in Howard v Bodington (1877) 2 PD 203 (i.e. what is the consequence if there is a failure to comply with the strict letter of the statute?) was incorrect, the court was entitled to make an order after 6 months having regard to the ECHR.

Saliently, the President stated:

"I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks." (Per Sir James Munby at para 65)

What can we expect post Re X?
Plainly each case will be fact specific; there doesn't appear to be a general rule. Just because an application is made out of time, there is no guarantee a parental order will be made. The scrutiny exercised by the court in these applications will be just as intense – arguably more so where the court is invited to "read down" statutory provisions and depart from the literal meaning of a statute.   

Should we expect a flurry of applications being made following Re X? Well, what we can certainly expect is that where applications for parental orders are made out of time, there are likely to be other ancillary issues that the court will have to grapple with. For example, consent may be an issue that the court has to address where a considerable period of time has lapsed since the commissioning parents entered into the surrogacy arrangement.

In the most recently reported case to emerge since Re X where an application was made out of time, the court had to deal with exactly that issue.

In AB v CD (Surrogacy: Time Limit and Consent) [2015] EWFC 12 the court was invited to make a parental order in circumstances where:

(i) The Respondent surrogate mother (who lived in India) had not had notice of the application and consequently did not have the opportunity to say whether she consented to the making of an order;

(ii) There was some uncertainty as to whether the surrogate was married at the time of the embryo transfer;

(iii) The application for a parental order was made over 3 years after the birth of the children; when the statutory provisions require it to be made within six months.

In AB v CD the applicants entered into a surrogacy agreement at a clinic in India. The applicants were both born in the UK but had spent time in Australia. Their intention when they began exploring surrogacy as a possibility was always to return to this jurisdiction. They requested a single surrogate so that AB, whose gametes were used to create the embryo, would automatically be the biological and legal parent. The applicants were informed by the clinic that the surrogate was divorced. There was, however, no legal documentation to support the claim, save for a statement from the surrogate contending that she was divorced.  The surrogacy agreement was signed by the surrogate with a thumbprint, with no supporting evidence suggesting that the document had been translated to the surrogate.

The surrogate subsequently gave birth to twins in October 2011 and the applicants and the twins returned to Australia. Proceedings commenced in Australia and the applicants were granted parenting orders, to confer and recognise the applicants' legal relationship with the twins.

Eventually, the applicants decided to return to this jurisdiction. Initially, they made a joint application here to adopt the twins. That application was stayed following the President's decision in Re X and the applicants subsequently made an application for a parental order.

Great effort was made by the liaison manager at the fertility clinic to ascertain the surrogate's whereabouts which proved unsuccessful. The surrogate therefore had no notice in respect of either application before the High Court in the UK (i.e. the initial adoption application and the parental order application).

Theis J observed:

"39. I have carefully considered the position of the surrogate mother in this case and whether she may be prejudiced by allowing this application to proceed, particularly in circumstances where she has had no notice of the application. The reality is, on the information the court has, any prejudice she may suffer is minimal. She has had no direct involvement with the applicants or the children since 2011, the evidence points towards her having moved on in her life. She co-operated with the Australian proceedings in 2012 which, not unreasonably, she may have regarded as the end to her involvement in any litigation concerning the children. The tenor of what she said within those proceedings is that she did not anticipate having any future role in the children's lives. She did not appear willing to co-operate with attending appointments with SCI in late 2013, and the more recent evidence demonstrates she is not contactable at all.

40. Turning to consider the applicants and the children, they will suffer, adopting the language used in Re X, 'immense and irremediable prejudice' if this application is stopped in its tracks. The applicants legal relationship with the children would be significantly different than what they had intended. There are positive benefits to the applicants and the children in allowing this application to proceed. They issued their application very promptly once they were made aware of the decision in Re X. Prior to that they had (wrongly) assumed they would not have been able to make the application whilst living outside the jurisdiction and once in the jurisdiction were advised, prior to Re X, that they needed to make their application within six months of the birth, namely before April 2012.

41. I am therefore satisfied, in the circumstances of this case, that despite the delay in issuing the application the requirement under s 54 (3) is met."

In respect of the consent and notice issues that arose, the court found that it was more likely than not that at the time of treatment, the surrogate was still married, which would make her husband the legal father of the children. However the court went on to find that the surrogate's husband did not consent to the surrogacy arrangement, and thus, his consent was not required under s54 (6) of the HFEA 2008.

It was submitted on behalf of the applicants that the affidavit sworn by the surrogate in 2012, more than 6 weeks after the birth of the twins, which was used in the Australian  proceedings,  could satisfy the s54(6) criteria. Theis J disagreed. Her ladyship took the view that:

i) it was an affidavit that was used in a different context;

ii) it did not convey what s 54(6) requires, namely consent 'with full understanding of what is involved' acknowledging that the person giving consent will no longer be treated as a parent; and

iii) the requirement for consent needs to be considered in the context of the HFEA 2008 which expressly provides an exception to this requirement for consent where the person cannot be found or is incapable of giving agreement.

Theis J concluded that the applicants had taken all reasonable steps to obtain the surrogate's consent and therefore her consent was not required on the grounds that she could not be found.

Finally the court went on to consider the welfare issues and was satisfied in the circumstances that a parental order should be made in respect of the twins.

General points
Theis J raised three general points in the exposition of the judgment which should be noted. Her ladyship observed that commissioning parents should be encouraged to:

(a) Promptly make applications for parental orders after the birth of the child, even if they are not present in the jurisdiction, providing at least one of them is domiciled in this jurisdiction (s 54(4)(b). It is only a parental order that provides lifelong security for the child, as it recognises the commissioning parents as the legal parents of the child with all the positive benefits that flow from it. Without that order their legal relationship with the child is best described as precarious; in most cases without such an order being in place, the surrogate mother (and her husband, if she is married) remain the legal parents of the child.

(b) Take steps to ensure there are clear lines of communication with the surrogate mother, and her husband if she is married, to facilitate the giving of consent after the expiry of six weeks from the birth (as required by section 54(6) and (7)). This should ideally include meeting the surrogate mother.
(c) Ensure there are coherent records regarding any sums paid under any agreement, in particular those that are paid to the surrogate mother.

Once again, we see the court giving would-be commissioning parents a reminder of the importance of taking appropriate steps when thinking about possible surrogacy arrangements.

It might be said that Re X should be regarded as a turning point in respect of the law relating to surrogacy in this jurisdiction. What it has certainly done is to re-galvanise the wider socio-legal debate about surrogacy law in general.

The overarching message exemplified by the recent surrogacy debate in the House of Commons in October last year, is that it remains the case that Parliament will always consider the welfare of any child born as a result of a surrogacy arrangement, as the court's paramount concern. Jane Ellison, the Parliamentary Under-Secretary of State for Health observed:

"Surrogacy is, obviously, an emotive issue, and it is good that we have had such a calm debate. It is recognised by all that it is not an easy area in which to make progress, but a case has been made that the time has come to examine it, not least because of the complexity of the international situation....

"...The law is aimed at striking a balance in protecting the rights of the surrogate mother and her family, the child, and the commissioning couple. The overall aim is the safeguarding of the child's welfare, which should be kept as a paramount consideration. There is consensus about that, I think."

Statutory reform is highly unlikely in the near future with an election weeks away. But it is plain that it is an issue which has gained a great deal of cross-party support. However, in the meantime, we must wait and see what other parts of the s54 criteria are challenged in the courts, and how far the courts are prepared to read down the statute.

Developments in the ECHR
Outside of cases decided in this jurisdiction, of relevance more generally, is a recent case in the ECHR. In Paradiso and Campanelli v Italy (application no. 25358/12), an Italian surrogacy case, 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 respect of the applicants' complaint regarding the removal of the child, the court held 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 2013the child had been with a foster family, with whom he had developed emotional ties. The applicants received a total of 30,000 Euros in damages (€20,000 in respect of non-pecuniary damage and €10,000 in respect of costs and expenses).