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Surrogacy Law Update (January 2016)

Andrew Powell, barrister, of 4 Paper Buildings reviews recent developments in surrogacy law.

Andrew Powell, barrister,  4 Paper Buildings

Since the last update, there have been a number of cases in respect of parental order applications where we have once again seen applicants inviting the court to adopt a purposive approach to interpreting section 54 of the Human Embryology and Fertilisation Act 2008 following the landmark decision of Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam).  As two of these cases demonstrate, there is a limit to how far the family court is willing to construe s54 without usurping parliamentary sovereignty.

A and B (No 2 - Parental Order) [2015] EWHC 2080 (Fam)
In A and B (No 2 - Parental Order) [2015] EWHC 2080 (Fam), Theis J was invited to consider an application for parental orders in respect of twin girls where the application was made out of time (some 17 months after the 6 month requirement pursuant to s54(3) of the HFEA 2008) and to determine whether it could be said that the children's home was with both of the applicants at the time the application was made pursuant to s54(4)(a).

Theis J identified three other issues which the court was required to address: i) domicile, pursuant to s54(4)(b) of the HFEA 2008, as whilst both of the commissioning parents were born abroad they both asserted that the UK was their domicile of choice; ii) whether the court could be satisfied that it had enough evidence to demonstrate that the surrogate mother and her husband had given their consent to the making of a parental order freely and with their full understanding as required by s54(6) of the HFEA 2008; and; iii) whether payments made to the surrogate (other than those for reasonable expenses incurred) prevented the court from authorising those payments pursuant to s54(8) of the HFEA.  These last three issues have, of course, been well rehearsed in the growing case law concerning parental order applications and ultimately turn on the evidence before the court in each case (see for example Z and another v C and another [2011] EWHC 3181 (Fam) re domicile at para 13).

The fact finding hearing
Prior to the substantive hearing in respect of the parental order applications, Theis J heard a fact finding hearing (reported as A and B (No 1 - Fact finding judgment) [2015] EWHC 1059 (Fam)) concerning the commissioning mother's allegations of domestic violence made against the commissioning father. At the conclusion of the fact finding hearing, Theis J concluded that applicant A (the commissioning mother) was unable to prove the allegations on the balance of probabilities, but that her behaviour did indicate a vulnerability to stressful situations (see para 97).

The parental order hearing
The application for parental orders was heard 4 months after the fact finding hearing.  In respect of the out of time application for parental orders, Theis J observed that the President in Re X "... made it clear a purposive construction can be given to the time requirement in s 54(3) and, that in any event, it is possible to 'read down' the provision to give effect to the Convention rights engaged, in particular Article 8" [at para 64].

Theis J went on to observe that on the facts of the case:

i. The applicants had acted in good faith;

ii. The enquiries they undertook did not reveal the need to apply for a parental order;

iii. The applicants thought they had done all that was necessary by their names being on the children's birth certificates;

iv. The applicants had been open to all professionals about the circumstances of the children's birth and no one had ever alerted them to the need for a parental order;

v. The female applicant sought specialist advice once she became aware of the issue and an application for parental orders was made following Re X.

On that basis the court was satisfied that the applications should be allowed to proceed notwithstanding the applications being made more than 6 months after the children were born (see paras 65-66).

Section 54(4)(a) of the HFEA 2008 states that:

"At the time of the application and the making of the order—

(a)the child's home must be with the applicants,"

The commissioning parents, who were married, separated in April 2012 but remained living together in the same home with the children. However, by May 2014 following an alleged argument, the commissioning father, applicant B, had left the family home and the commissioning mother, applicant A, had obtained a non molestation order from a district judge at their local family court.

In considering the issue whether the applicants could satisfy s54(4)(a), Theis J relied on the President's decision in Re X. Theis J observed:

"68. In Re X the commissioning parents were separated at the time the application was issued although had reconciled by the time the matter was heard by the President. At the time they made their application there was a shared care arrangement between the parties with the child splitting his time between the two homes. The President considered the child had his home with the commissioning parents, with both of them, albeit that they lived in separate houses. The President laid emphasis on the fact that the child did not have his home with anyone else. His living arrangements were split between the commissioning parents, the President concluded 'It can fairly be said he lived with them' (para 67).

69. The President continued that even if he was not correct in that analysis the Convention applied and the statute should be 'read down' to achieve the same result. It involved a lesser reading down than I was prepared to accept in the case of
A v P (Surrogacy: Parental order: Death of Applicant) [2011] EWHC 1738 (Fam). He referred to Kroon v The Netherlands (1994) 19 EHRR where the Strasbourg court accepted that family life existed between two parents and their children even though the parents had never married, did not cohabit and lived in separate houses."

Theis J then gave the following five reasons why the court was able purposively to construe the s54(4)(a) criteria (at para 71):

i   There was nothing that militates against the court purposively construing this provision;

ii    Were the court not to construe the provision in such a way, it would have the potential to have detrimental long term consequences for the applicants and the children;

iii  On the facts of the present case, there was nothing to suggest that such a course would have a detrimental impact to the welfare of the children;

iv Although separated, the parents remain married. All of the evidence before the court indicated that the applicants remained committed to the children and ensuring that their welfare needs are met;

v  Whilst the time that the commissioning father spent with the children was less than in Re X, it was said to be as a result of the limitations of his accommodation - it was not suggested that it was owing to a lack of commitment to the children.

As with the approach adopted by the President in Re X, Theis J found that if her analysis was not correct, that "Article 8 [of the ECHR] is undoubtedly engaged." (see para 76) and that the statute should be read down to achieve the same result.

The remaining issues to be dealt with in respect of the s54 criteria were relatively uncontroversial.  Finally, turning to consider the welfare interests of each of the children, the court shared the view of the children's guardian that a parental order was the bespoke order for these children.  The court granted the parental order applications and directed that the parents should attend a separated parents information programme.

The origins of this case highlight the importance that all of those involved in the family court be aware of cases where surrogacy issues may arise and the implications they may have on legal parenthood in this jurisdiction in the absence of a parental order. This case, it seems, began as fairly ordinary Children Act and Family Law Act proceedings before a district judge but were quickly transferred to the High Court for case management when the circumstances of the children's birth became apparent.

Re Z (A child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73
For many legal commentators, the HFEA 2008 was a missed opportunity for wider reform to the criteria for parental orders under the HFEA 1990. Whilst the changes that the 2008 Act facilitated were welcomed (availability of parental orders to same sex couples and co-habiting couples in a long and enduring relationship) it did not extend so far as to allow single parents to apply for a parental order.  Single parent adoption and fertility treatment for single women are permitted, why not parental orders for single commissioning fathers?

The protagonist in Re Z (A child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 invited the court to grant such an application, adopting a similar approach to that in Re X.

Section 54(1) of the HFEA 2008 requires that an application for a parental order is one made by two people. The father had lawfully entered into a gestational surrogacy agreement in the USA.  The subject child had been conceived using the father's sperm, a donor egg which was implanted into an experienced unmarried American surrogate mother. Following the child's birth in Minnesota, the father obtained a declaratory judgment which extinguished the surrogate mother's legal rights or responsibilities for the child, thus establishing and vesting sole parentage for the child in the father.  The father was registered as the child's legal father in Minnesota, and father and child later returned to this jurisdiction.

The father applied for a parental order upon his return to this jurisdiction. As the President observed, but for one matter (i.e. the issue of a single parent applying for a parental order), the application was unproblematic. The application for a parental order was supported by the child's guardian.

The court considered the historical legislative background to the HFEA 2008. It was argued on behalf of the applicant that: "the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people is that this is a discriminatory interference with a single person's rights to private and family life, which is therefore inconsistent with Articles 8 and 14 of the Convention." [emphasis in original at para 18]

The father's primary position was that the provisions of s54 could be read down in order to make it compatible in accordance with s3(1) of the Human Rights Act 1998 (i.e. that, as far as it is possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights).

The President concluded that s54(1) of the HFEA 2008 could not be read down in such a way. His Lordship concluded:

"36. The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.

37. Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a "fundamental feature", a "cardinal" or "essential" principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as Miss Isaacs would have me read it would not be "compatible with the underlying thrust of the legislation", nor would it "go with the grain of the legislation." On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation.

38. Miss Isaacs seeks to persuade me to the other view by submitting (a) that the cardinal principle of the 2008 Act was to make the law fit for the twenty-first century by removing discrimination against different types of families and (b) that the fundamental purpose of section 54 was only ever to provide a regulatory scheme for the making of legal orders to safeguard the welfare of children born through surrogacy arrangements rather than to prevent or restrict eligibility to apply for such orders on the basis of any discriminatory criterion, such as single person status. No doubt these were important ingredients in what went to make up the statutory scheme as Parliament devised it in 2008, but they do not, in my judgment, reflect the whole picture or adequately describe all the key features of the statutory scheme."

However, whilst the President refused to grant the application for a parental order, the door has been "left open" should the father seek a declaration of incompatibility.

Guidance in respect of parental order applications: Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90
In Re Z (Foreign Surrogacy: Allocation of Work: Guidance on Parental Order Reports) [2015] EWFC 90, Russell J sets out guidance (approved by the President of the Family Division) in respect of parental order applications. The factual background to the case was complex, where the subject children remained in India for 12 months following their birth, with difficulties obtaining travel documents, coupled with a delay in the proceedings being allocated to a specialist high court judge.

Russell J provided the following guidance:

"73. Guidance In respect of the allocation of parental order applications there will be the following guidelines applied in keeping with the practice and procedure as set out in Schedule 1, 3 (f) (iv) of the Distribution of Business in the High Court of the Senior Courts Act 1981, rule13.9 (1) (e) of the Family Procedure Rules (FPR) 2010 and Schedule 1 paragraph 4(f) of the Family Court (Composition and Distribution of Business) Rules 2014 which have been in force from 22 April 2014 on the formation of the Family Court (as referred to above).

i) All proceedings for parental orders will commence in the Family Court where they will remain. They should not be transferred to the High Court.

ii) All proceedings pursuant to s 54 of the HFEA 2008 where the child's place of birth was outside of England and Wales should be allocated to be heard by a Judge of High Court Level.

iii) In London all cases should, if possible, be allocated to Mrs. Justice Pauffley, Mrs. Justice Theis or Ms. Justice Russell.

iv) Cases which originate on circuit, unless transferred to London, should be allocated to be heard locally by a High Court Judge identified by the Family Division Liaison Judge in consultation with the Judge in Charge of the HFEA list (this is Mrs. Justice Theis).

v) Allocation of the case to either the Cafcass High Court Team or to a local Cafcass or Cafcass Cymru officer to act as parental order reporter is a matter for Cafcass (subject to their own guidance and the guidance below)."

The clear message from this case is that applications for a parental order where the child was conceived overseas should be heard by a High Court judge. Domestic surrogacy cases, which are rarely reported, are frequently heard by magistrates sitting in the family court. However, plainly it will be important for parties in domestic surrogacy cases as well to identify any issues of complexity from the outset that may require resolution by a High Court judge to prevent any delay.

Surrogacy law reform?
In November 2015 Dr Kirsty Horsey, an academic at the University of Kent Law School, published a report (with contributions from Natalie  Smith (trustee of Surrogacy UK), Sarah Norcross (Director of the Progress Educational Trust), Louisa Ghevaert (Partner at Michelmores LLP) and Sarah Jones (trustee of Surrogacy UK)). It is called Surrogacy in the UK: Myth busting and reform Report of the Surrogacy UK Working Group on Surrogacy Law Reform.

This is a comprehensive report providing an overview of surrogacy in the UK and the case for law reform. It is particularly apt that the foreword to the report is written by three very well known academics who have been influential in the legal world concerning surrogacy, assisted reproduction and how the family courts regard modern families (Baroness Mary Warnock, Professor Margot Brazier and Professor Susan Golombok).

The report recommends that the law reform is required and that the current law regulating surrogacy is out of date.  The following recommendations are made:

• Parental orders should be pre authorized so that where arrangements run smoothly and legal parenthood is conferred on the intended parents at birth;

• Intended parents should register the birth;

• Parental orders should be available to single people who use surrogacy;

• Parental orders should be available to intended parents where neither partner has used their own gametes ('double donation');

• The time limit for applying for a parental order should be relaxed (or removed);

• Parental order/surrogacy birth data should be collected centrally and transparently, and published annually;

• IVF surrogate cycles and births should be accurately recorded by clinics/HFEA;

• The rules on surrogacy related advertising and the criminalisation of this should be reviewed in the context of non-profit organisations.

The authors make the following recommendations for the government:

• The Department of Health, in consultation with the surrogacy community, should draft and publish a 'legal pathway' document for IPs and surrogates.

• The Department of Health should produce guidance for professionals in the field, written in consultation with the surrogacy community for midwives and hospitals, Children and Family Court Advisory and Support Service (Cafcass) and clinics.

• Surrogacy should be included in schools' sex and relationships education (SRE) classroom curriculum (from primary) – linked to awareness of (in)fertility, family options for same sex partners etc.

This is a timely and thorough report and we must wait to see what the wider response is from law makers; and whether there is any likelihood that some or any of proposals for reform will be adopted.  What the report does demonstrate is that there appears to have been a shift in public perception since the Warnock report in the 1980s regarding surrogacy. That is perhaps the clearest sign that there should be some measure of reform to protect commissioning parents, surrogates and most importantly the children at the centre of these arrangements.