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Surrogacy and HFEA Update (November 2017)

Andrew Powell, barrister of 4 Paper Buildings, considers recent developments relating to surrogacy law as well as the latest cases concerning administrative errors and the HFEA.

Andrew Powell, barrister, 4 Paper Buildings

Andrew Powell, barrister, 4 Paper Buildings

Inability of unmarried biological mother to apply for a parental order
M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam)  
Once again the issue regarding single parents being able to apply for parental orders was brought into focus in this recent case before Mr Justice Keehan, sitting at the Birmingham Civil Justice Centre. 

The facts of this case can be summarised as follows. The child was born following a domestic surrogacy. The child was carried by a surrogate (SM). By the time of the child's birth, the child's biological mother (M) and father (F) (i.e their gametes had been used to create the embryo that was transferred to the surrogate) had separated (they were not married). The child's legal parents were the surrogate mother and the biological father. The biological mother (i.e. the commissioning mother) had no formal legal status other than being the biological mother.  F did not have parental responsibility for the child: at birth the only person with parental responsibility for the child was the surrogate mother.

Immediately post-birth, the child was cared for by the biological mother, and she applied for orders under the court's inherent jurisdiction. The biological father had indicated from the outset of the proceedings (in a letter he had sent to the court) that he did not wish to be involved in the proceedings, nor involved in the child's upbringing.

The child was made a ward of court and the court delegated care and control of the child to the biological mother, with a prohibition that the biological father could not remove the child from the biological mother's care.
Keehan J considered the well-known criteria for the making of a parental order under s54 of the HFEA 2008.  The difficulty in the present case was an obvious one: the biological mother was unable to apply for a parental order as a single parent, pending law reform following the declaration of incompatibility made in In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam).

Keehan J observed:

21. Following the President's declaration of incompatibility in Re Z (A Child) (No. 2) above, the Government is actively considering the terms of a remedial order to address the incompatibility identified in that case: see paragraph 17 above.

22. The applicant earnestly hopes that that the terms of the remedial order will be such that she will be able to apply for a parental order. This 'transformative' order would enable her to be a legal parent of A.

23. In the meantime I am satisfied that it is in A's welfare best interests for the court to approve the continuation of the wardship and the grant of care and control in respect of him to the applicant.

24. In giving this judgment I have well in mind the words of the President in Re Z (A child) (No. 2) where at paragraph 26-28 and 30 he said

26. They submit that the use of the remedial power under section 10 is "appropriate and necessary in this case because it would ensure that [the father] could apply for a parental order with minimum delay, and would prevent Z … remaining in a legally vulnerable position for any longer than is absolutely necessary."

27. Going even further, they invite me to "pass comment (by way of obiter dicta) about the merits of Parliamentary review of the scheme of section 54" and to "express any view as to the desirability or necessity for future reform as may be considered appropriate.

28. I absolutely decline to do any of this.

29. On behalf of the Secretary of State, Miss Broadfoot and Miss Gartland understandably counsel great caution. First, they point out – correctly as it seems to me – that there are various different ways in which the discriminatory effect of the present legislation could be cured. Secondly, they observe that this is an area of social policy in relation to a matter – surrogacy – which is controversial. Thirdly, they submit, and I agree, that it is constitutionally a matter for the legislature to determine its response. Fourthly, they submit, and again I agree, that it is entirely a matter for the government to decide whether or not to utilise the Ministerial power under section 10. It is important to note the language of section 10(2). It is a matter for "a Minister", therefore not for a judge, to "consider" whether there are "compelling reasons." Moreover, as they point out, the court can be in no position to know whether such compelling reasons exist, as this may depend upon a number of factors of which the court can have no knowledge or in respect of which it may be lacking in relevant expertise. Fifthly, and finally, they caution that any observations I might be tempted to make may have unintended implications and unforeseen consequences."

25. Once again, I respectfully agree.

The case highlights once more the pressing need for law reform to ensure children born through these arrangements are afforded the highest level of legal protection that only a parental order can offer.

Children: surrogacy, and single people and parental orders (UK) - Briefing Paper, House of Commons Library Publication Date: 18 September 2017
This briefing paper comes following the House of Lords debate on surrogacy in December 2016 post Re Z (no2) (see February 2017 update). The paper acknowledges that plans for a remedial order in "early 2017" have not yet taken place and that it is more likely to be the autumn session of parliament (which commenced a few weeks ago). Helpfully the briefing papers provides a chronology setting out some of the delays; unsurprisingly, the widely-unexpected announcement of a General Election earlier this year features.  Watch this space for more news.

Application for parental order out of time
Re B (Foreign Surrogacy) [2016] EWFC 77

In this case Theis J was concerned with an application for a parental order that had been made out of time, the subject child was 6 at the time of the final hearing in September 2016 (however the transcript of the judgment was made available in August 2017). The child was born following a surrogacy arrangement in India in 2009 (surrogacy for foreign nationals in India is now prohibited).

There were a number of issues upon which Theis J had to determine before being able to make the parental order: 1) that the application was made out of time; 2) that the parents had separated during the proceedings (but remained married) but were living in separate homes; and 3) the issue of consent.

The first two issues were easily dealt with and were almost identical to the circumstances with which Theis J was concerned in A and B (No.2 Parental Order) [2015] EWHC 2080 (Fam): an application made out of time does not prevent the court making a parental order following the President's guidance in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam), and as in A and B the court was able to find that a family life existed despite their recent separation. 

The court was satisfied that consent had been given by the surrogate and her husband to the making of a parental order, each having signed relevant documents shortly after the child's birth. Theis J went on to make a parental order in respect of the child, with Theis J concluding:

49. I have been able to consider all the papers, particularly statements from Mr and Mrs B and I have had the benefit of being able to hear oral evidence from them.  I have no hesitation in concluding that B's lifelong welfare needs require this court to make a Parental Order, that order will extinguish the residual parental rights the respondent surrogate mother and her husband have.  Importantly, such an order will confer joint and equal legal parenthood and parental responsibility upon both the applicants and this will ensure that B's security and identity as a lifelong member of the applicants' family is secured in the best way possible.

Court's attitude to commercial surrogacy
XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB)
This case was heard in the Queen's Bench Division in June 2017 but is worthy of note as it did raise the question of commercial surrogacy, but in a different context for family lawyers. Briefly, this was a negligence trial dealing with quantum, the hospital having already accepted liability in relation to negligence that led, among other medical complications, to the claimant's infertility.

The claimant sought damages that would enable her and her partner to enter into a surrogacy arrangement in America (California), she having harvested some of her eggs before undergoing chemotherapy. Following an earlier Court of Appeal decision, the court rejected the argument that the claimant should be awarded damages to enter into a commercial surrogacy arrangement that would be unlawful in this jurisdiction.

However, the court did award damages for the claimant undergoing two surrogacy arrangements in this jurisdiction (awarding £37,000 plus VAT for each arrangement). The court calculated this amount of damages taking in to account reasonable expenses of the surrogate and legal advice. The case is interesting as it highlights the ambivalence towards commercial surrogacy, and whilst the family court will routinely retrospectively authorise payments made commercially, the court in this particular case seemed less inclined to be seen to be actively endorsing commercial surrogacy.

Applications for declarations of parentage: need for an oral hearing
Human Fertilisation And Embryology Act (Cases AD, AE, AF, AG and AH - No 2) [2017] EWHC 1782 (Fam)
In another of the clinic form alphabet cases, the President considered the circumstances in which it would be necessary for a full hearing if an application was brought by consent.

The President observed that he thought it was difficult to see "how it could ever be appropriate to dispense with an oral final hearing" in cases which came down to factual issues of evidence. However his lordship did consider that there may be some circumstances where an oral hearing might not be necessary:

i. the application turns entirely on written documents from the clinic's file;

ii. the factual circumstances are the subject of a previous judgment which is precisely in point; there is no dispute between the parties;

iii. there has been no intervention by the Human Fertilisation and Embryology Authority, the Attorney General or the Secretary of State for Health;

iv. The applicant and respondent both wish to proceed without an oral hearing.

The President emphasised in this judgment that even if the above criteria are met, the opportunity for the parties to address the court remains (see para 6 of  Re Human Fertilisation and Embryology Act 2008 (Case V) [2016] EWHC 2356 (Fam)).

Declaration of parentage: form not completed correctly
Re AK, Human Fertilisation and Embryology Act 2008 [2017] EWHC 1154 (Fam)
The President granted a declaration of parentage in circumstances where a form had not been completed correctly. The form WP was correctly completed by Y. There was no form PP that could be found that was to be completed by X. It was not clear to the court whether this was because there never was a form PP or because the form PP had been lost. However, in any event, the case was not advanced on the basis that the court should find that a properly completed form PP had been lost. Instead the court was able to find that X had signed a part of the form WP as Y's partner (and not as Y's representative). The President observed that it was

"quite obvious that there has been a mistake. Whatever else X was doing, she was not signing the Form WP as Y's "representative". Y, after all, had signed herself. So what was X doing, what did she and Y and the witness think she was doing, when she signed the Form WP, if not to acknowledge and record that she was to be a legal parent? The answer, in my judgment, is clear and obvious: X was signing the form, as Y's "partner".

This is yet another example of the President adopting a sensible approach to rectify a situation where the ongoing mistake could have far reaching legal consequences for the family concerned.

Administrative errors: need to obtain court order
P & Ors (Human Fertilisation And Embryology Act 2008) (No 2) [2017] EWHC 2532 (Fam)
Following an audit, a clinic found anomalies in forms which would confer legal parenthood. The President expressed concern "that there appears to be an impression in some quarters that the kind of problems which have characterised all the many cases which I have had to deal with – Re the Human Fertilisation and Embryology Act 2008 (Case AK) was the thirty-fifth such case in which I have given judgment – can sometimes be resolved appropriately without obtaining an order of the court. This, in my judgment, is a highly problematic, indeed dangerous, view." (at para 13)

Drawing parallels to parental orders in surrogacy, the President observed:

In what is now a long line of cases involving applications for parental orders in accordance with section 54 of the 2008 Act, Theis J has emphasised the importance of the need for such orders. There is, of course, a significant difference between the two types of case, because whereas a parental order has, as has been said, a "transformative" effect, and creates legal rights, the declaration granted in the present type of case is, as the word suggests, merely declaratory of existing legal rights. But that does not mean that there is no advantage to be gained by obtaining such a declaration. Far from it: a declaration of status granted by the High Court after appropriately stringent investigations, and after, as is invariably done, notice of the proceedings has been given both to the Attorney General and to the Secretary of State, has an effect in law and reality which far transcends any purely private transaction or agreement between the parents. To adopt, mutatis mutandis, some words used by Theis J in J v G [2013] EWHC 1432 (Fam), para 28, quoting from the parental order reporter in that case:

"A parental order allows the reality for [the children] to be formalised now and bestows a sense of finality and completeness. It closes the door on official challenges to the intended parents' authority and paves the way for the future without … further anxiety."

Similarly, a declaration puts matters on a secure legal footing. It affords both child and parent lifelong security. It puts beyond future dispute, whether by public bodies or private individuals, the child's legal relationship with the parent as being, indeed, his legal parent.(at para 16 – emphasis added)

This case reiterates the importance of obtaining appropriate legal orders to "afford both the child and parent lifelong security" and that there can be significant implications where a child's legal status is not secured.