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Surrogacy update – June 2016

Andrew Powell, barrister, 4 Paper Buildings, reviews recent important judgments concerning surrogacy law.

Andrew Powell, barrister, 4 Paper Buildings

It seems with each surrogacy update there comes yet another landmark decision that challenges the legal framework of the surrogacy law in the UK. In this update the President's decision in In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam) concerning a single father's application for a declaration of incompatibility is considered, as well as Re X (Foreign Surrogacy – Child's Name) [2-16] EWHC 1068 (Fam) and Re DM and LK [2016] EWHC 270 Fam).

In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam)
This is the sequel to the judgment handed down by the President last year in In Re Z (A Child) (Surrogate Father: Parental Order) [2015] EWFC 73, [2015] 1 WLR. In the first Re Z a single applicant applied for a parental order, inviting the court to 'read down' the statutory provision contained in section 54 of the Human Embryology and Fertilisation Act 2008 that requires two applicants to apply for a parental order, adopting the approach established in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam). In the first Re Z the President refused the applicant's application, observing:

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.

In short, the President concluded that the "…application fails in limine. As a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act." There was however an indication at the conclusion of that judgment that the father might, at a later stage, make an application for a declaration of incompatibility. Such an application was duly made.

Declarations of incompatibility are a rare feature in family cases and are more commonly heard, owing to their nature, in the Administrative Court of the Queen's Bench Division. When the Human Rights Act 1998 came into force in October 2000 it established that human rights contained in the European Convention on Human Rights (ECHR) form part of our domestic law by ensuring that:

i. All UK law must be interpreted, so far as it is possible, in a way that is compatible with Human Rights Act;

ii. Where an Act of Parliament breaches these rights, the courts can declare the legislation to be incompatible with those rights. This does not affect the validity of the law – this does not transgress the doctrine of parliamentary sovereignty, as it remains a matter for Parliament to decide whether or not to amend the law;?

iii. It is unlawful for any public authority to act incompatibly with human rights (unless under a statutory duty to act in that way), and anyone whose rights have been violated can bring court proceedings against the public authority.

The father therefore sought a declaration that s54 of the HFEA was incompatible with the rights of the father and the child i) under Article 8 of the ECHR (right to family life) or ii) under Article 8 taken in conjunction with Article 14 of the ECHR (prohibition of discrimination). The application for a declaration of incompatibility was supported by the child's guardian. It was the father's case that:

"… section 54 of the 2008 Act, insofar as it confines the power of the court to make a parental order to cases where the application is made by "two people", is incompatible with the rights of both the father and Z, either (a) under article 8 or (b) under article 8 taken in conjunction with article 14. (The argument is no longer based on article 12.) Amongst the authorities they rely upon in support of the case based on article 8 are the important decisions of the Strasbourg court on 26 June 2014 in the two linked cases of Mennesson v France (Application no. 65192/11) and Labassee v France (Application no. 65941/11). Central to their argument in relation to article 14 is the decision of the House of Lords in In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173." (at paragraph 9)

Z's guardian supported the father's case.

The Government conceded to a declaration being made having considered the father and the guardian's written arguments. The concession was made on the following basis:

• The Government accepted that the facts fell within the ambit of Article 8 and that Article 14 was engaged;

• The Government accepted that there was a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement. This difference in treatment, namely the inability to obtain a parental order, is on the sole ground of the status of the commissioning parent as a single person versus the same person were he part of a couple.

• The Government accepted that, in light of the evidence filed and the jurisprudential developments both domestic and in Strasbourg, including for example Mennesson v France (Application no. 65192/11) taken with Wagner v Luxembourg (Application no. 76240/01), this difference in treatment on the sole ground of the status of the commissioning parent as a single person versus being part of a couple, could no longer be justified within the meaning of Article 14.

The Government's concession was on the basis that this was fundamentally a discrimination case, and did not accept that there was any incompatibility with article 8 taken alone (see paragraph 14). As the President records in his judgment, for reasons of proportionality, the father no longer invited the court to consider the "academic distinction" between incompatibility on the basis of article 8 alone vis-à-vis article 8 taken in conjunction with article 14.  The court went on to make the following declaration:

"Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple."

The court was invited on behalf of the father to identify the factors which precipitate the provision's infringement. The President declined to do so, observing that it was "constitutionally a matter for the legislature to determine its response" to the declaration. 

As to what happens next, it will be a matter for the Government to determine how it proposes to respond to the declaration. As many commentators have observed since the judgment was handed down, the case throws into sharp relief once again the need for a fuller review of the law relating to surrogacy in the U.K. 

Following the judgment in Re Z (No 2) Baroness King of Bow (former MP, Oona King) raised a question in the House of Lords on 23 May 2016, whether the Government now intends to review the legislation relating to surrogacy.  The response on 7 June 2016 from Lord Prior of Brampton indicated that there is a possibility that the Law Commission may decide to review surrogacy law in the UK. The response was as follows:

"Surrogacy is a complex issue, the legislation about which has not been significantly addressed by respective administrations since the Surrogacy Arrangements Act 1985. The Government recognises the arguments for the need for a review, and we have therefore asked the Law Commission, as part of the consultation on its 13th work programme this summer, to consider including a project on surrogacy

The Government has accepted the judgment by Sir James Munby from the High Court. We will be looking to update the legislation on Parental Orders, and are now considering how best to do this.

The Government recognises surrogacy as an important option for some people wishing to start a family and is currently considering how best to clarify the current legal arrangements for intended parents, surrogates and their families. The Children and Family Court Advisory and Support Service campaign to increase awareness of Parental Orders is ongoing and targeted at health workers, local authority registration staff and surrogacy agencies. It will be evaluated in full upon completion in autumn 2016; in-campaign monitoring indicates its messaging is reaching the target audience."

So there is a possibility that the Law Commission will decide to undertake a review of surrogacy and possible law reform in light of this landmark decision.

Re X (Foreign Surrogacy - Child's Name) [2016] EWHC 1068 (Fam)
In Re X (Foreign Surrogacy - Child's Name) [2016] EWHC 1068 (Fam) an application was made by a same sex couple for a parental order following an international surrogacy arrangement in Nepal. The court was also asked to consider whether an additional order was necessary to change the child's birth name.

The applicants encountered significant difficulties returning to the U.K. The surrogacy arrangement took place in Nepal at a time when surrogacy was lawful, which subsequently changed; and the child was born two months prior to an earthquake in Nepal which caused significant loss and damage to the country's infrastructure, which complicated matters further.  The first applicant and the child were in Nepal for over three months while the British and Nepalese exit arrangements were undertaken, with the second applicant returning to this jurisdiction to return to work and look after the applicants' older child.

The child was born in July 2015 in Nepal to a surrogate mother. An application was made to register the child as a British citizen, which was subsequently granted. Days later an application was made for the child to obtain a British passport. A British passport was issued. However the child was refused an exit visa on 6 October, but permitted to exit Nepal on 29 October.

Whilst the applicants encountered difficulty returning to this jurisdiction, it was ameliorated by the applicants' prompt application (eight weeks after the child's birth) for a parental order which enabled the court to be apprised of the situation at an early stage. Theis J stated that that was "vital" in trying to remedy the situation as quickly as possible.  Theis J identified three relevant policy and advice documents that should be considered by anyone embarking on an international surrogacy arrangement:

• The Foreign and Commonwealth Office's publication Surrogacy Overseas (FCO Guide);

• The Passport Office guide Applying for a Passport from Outside the UK Guide to the Online Application Service; and

• Home Office Guidance on completion of Form MN1, Guide MN1: Registration as a British citizen – A Guide about the registration of children under 18.

Theis J went on to observe that

"It is hoped by referring to this important guidance, which highlight the complexities and delays that can occur for children who are born following surrogacy arrangements entered into abroad, it will help bring this essential information to the attention of those who are considering embarking on this type of arrangement. Any further steps the FCO can take to ensure this advice is as widely available as possible, would no doubt further assist couples prepare for what is required. The FCO Guide is essential reading for those contemplating these surrogacy arrangements, for example it succinctly sets out the evidence required for passport issue for any child born in these situations." (At paragraph 12)

The court was satisfied that the relevant s54 criteria of the HFEA 2008 were satisfied in order to make a parental order. However, matters did not end there, as the applicants wished for the child to be known by the same surname as their older child. This was different from the surname on the child's birth certificate as the applicants had been advised to have the first applicant's surname to reflect paternity in Nepal. Theis J agreed with submissions made on behalf of the child that the "clear inference from the legal provisions and the court processes for parental orders is that the child's change of name does not require a specific order. The applicants can nominate a new name for the child and the registration of the parental order is, without further proof, to be evidence of the parental order as if it were a birth registration in the new family name." (at paragraph 35)

The court was therefore satisfied that it was able to make a parental order in the name requested by the applications without any further orders.

Re DM and LK [2016] EWHC 270 Fam)
Re DM and LK [2016] EWHC 270 Fam) concerned another surrogacy arrangement where although the child was born in this jurisdiction, the embryo transfer took place abroad (Cyprus).

The application required careful scrutiny by the court owing to the somewhat unusual circumstances of the case. A surrogacy agreement had been entered into by the second applicant (LK) and her then husband in 2012. There were two embryo transfers using the gametes of LK and her then husband. Both proved unsuccessful and LK and her then husband subsequently separated in 2013.  LK went on to meet DM (the first applicant). The applicants enquired at the Cypriot clinic whether it was necessary to inform the surrogate that the embryo was created using the gametes of DM's genetic material rather than LK's former husband. The clinic informed them that that was not necessary.

A successful embryo transfer having taken place, LK, the second applicant, on legal advice, told the surrogate when she was seven months pregnant that DM, the first applicant, was the genetic father. The surrogate mother reported to the parental order reporter that she was shocked to learn the true paternity of the child, which initially resulted in difficulties in the parties' relationships. The surrogate and her husband consented to the making of a parental order which made matters less complex, however, as Theis J observed:

"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."

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.

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.
 (at paragraph 13- 15)

Theis J concluded that this case is an apt example of 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."

The recent cases to emerge from the Family Court emphasise again the court's desire, so far as it is possible, to uphold surrogacy arrangements, particularly in circumstances where a child is placed with loving parents and there is no dispute between the commissioning parent(s) and the surrogate. However these cases emphasise the importance of transparency in such arrangements and the need for commissioning parents to seek appropriate specialist advice before embarking on them. Hopefully the Law Commission will accept the Government's invitation to undertake a review of surrogacy, which may facilitate reform in this evolving area of law. 

11th  June 2016