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Surrogacy Law / HFEA Update (June 2017)

Andrew Powell, barrister of 4 Paper Buildings, considers recent surrogacy judgments and the latest cases concerning administrative errors relating to consent forms and the HFEA.

Andrew Powell, barrister, 4 Paper Buildings

Andrew Powell, barrister, 4 Paper Buildings 

Since my last update, there have only been a couple of reported surrogacy cases. This is perhaps illustrative of the way the courts are approaching cases: issues which two or three years ago were considered troublesome, are routinely resolved by the courts without difficulty.

Re A (Foreign Surrogacy- Parental Responsibility) [2016] EWFC 70
In Re A the applicant sought a child arrangements order following an international surrogacy arrangement. The applicant was a single man and thus unable to apply for a parental order. The child was born in Oregon in the United States, following a legally recognised surrogacy arrangement entered into between the parties. The applicant father was the biological father. The respondent was the (unmarried) gestational surrogate mother who gave birth to the child following IVF with embryos created using gametes from the applicant and an anonymous third party egg donor.

The applicant sought orders that would secure the child's status with him in this jurisdiction and afford him parental responsibility for the child.  The applicant father did not have parental responsibility because he is not on the birth certificate as required by s 4 (1) (a) of the Children Act 1989. Section 4(1)(A) of the Children Act 1989 sets out the enactments under which a birth must be registered to confer parental responsibility on an unmarried father.

Moreover, the applicant sought restrictions to be placed on the surrogate to restrict her ability to exercise parental responsibility (presumably akin to the order made in JP v LP & Others [2014] EWHC 595 (Fam)), given that a parental order or adoption order are the only orders that would terminate the surrogate's parental responsibility. Theis J observed: 

"The making of a Child Arrangements Order will ensure the Applicant has parental responsibility in relation to A (see s 12 CA 1989). Even though it has not caused any difficulties to date for the Applicant to be able to provide for A's day to day care, it is clearly in A's interests for the Applicant to be able to have parental responsibility, so that he is able to take all steps that are necessary to be able to meet the day to day welfare needs of A. It also provides clarity in relation to his legal status and position in relation to A. In considering whether to grant the application the court's paramount consideration is A's welfare, having regard to the matters set out in the welfare checklist at s 1(3) CA 1989.

Having considered the Applicant's statement filed in support of his application, which sets out the arrangements he has made for A, I am entirely satisfied that A's welfare needs will be met by this Court making a Child Arrangements Order providing that A lives with the Applicant, with the restrictions in relation to the exercise of parental responsibility by the Respondent who in reality plays no further part in the day to day care arrangements for A."

The case again highlights the need for law reform in respect of single applicants.   In my last update, I highlighted the developments concerning single applicants seeking parental orders in light of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam). Save for the debate in the House of Lords in December 2016, prior to Parliament being dissolved in May 2017, there had been no further legislative developments or even any indication as to when a remedial order will be used to amend the existing law. In addition to this, the newly elected minority Conservative government's likely "confidence and supply" agreement with socially conservative DUP may mean that it is not something that will be given priority by the new government.   

Re M (Child) [2017] EWCA Civ 228
In Re M, the Court of Appeal heard an appeal from Russell J (Re Z (surrogacy agreements) (Child arrangement orders) [2016] EWFC 34) (see October 2016 update). At first instance, Russell J ordered that a child born following a domestic surrogacy arrangement should remain living with the gestational mother rather than the biological father, his partner and twins who were full siblings of the subject child.

On appeal, Black LJ, giving the lead judgment, concluded that the substantive order was grounded in welfare principles and was therefore not open to challenge. At first instance, Russell J did not grant the biological father's partner parental responsibility, which formed part of the biological father's appeal. However before the case came on for hearing in the Court of Appeal, that issue was conceded, resulting in four people holding parental responsibility for the child (the mother and her partner, and the biological father and his partner). 

Consent forms and the Human Fertilisation and Embryology Authority?
The cases concerning paperwork errors arising from treatment at fertility clinics continue to make their way through the courts.  Recent cases include:

In A v R,  Peter Jackson J granted an application for a declaration of parentage where there was record of a WP form being signed (both parents had signed the PP form) at the clinic. No new point of law arose in the case and the clinic agreed to pay the reasonable costs of the applicants.

In B v B, another case heard by Peter Jackson J where the declaration of parentage was granted, the judge satisfied himself that agreed fatherhood conditions under s37 of the HFEA 2008 were satisfied. As with previous cases, in B v B there were internal consent forms. Peter Jackson J stated that the substance and total effect of the documents "clearly express the intention of the couple to be treated as full and equal legal parents" (para 26) even though the forms were significantly different from the internal consent (IC) forms accepted in previous cases (para 27). His lordship reasoned that the outcome "conforms with the twin pillars of the legislation – informed consent and child welfare" (para 27).

In Re Cases Y, Z, AA, AB & AC the President of the Family Division considered a cluster of cases (five in total)  following on from Re A in 2015. No new legal points arose in the cases, and the President granted declarations in each. Saliently, in Case Y an internal consent form with the inclusion of the words "subject to the completion of the appropriate HFEA consent forms" was held not to be fatal to the efficacy of the document signed; reading the documents as a whole it is clear both parties signed a document contemplating that X would be the parent (para 10).

In Re AD & Others, the President of the Family Division again considered a cluster of cases (also five). Similarly to Cases Y, Z, AA, AB & AC, heard ten days before this case, no new legal principles arose.  Declarations were made in all cases. Helpfully, the President clarified a point in Case AE, where his lordship held that consent is not "clinic specific" and it does not matter if consent was given when undergoing treatment at another clinic (para 12).

The last six years or so have seen a broadly socially progressive direction in respect of  social policy and family law. However with the current uncertain political climate it will be interesting to see what, if any, impact that will have on this particular area of family law.