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Surrogacy and HFEA Update: July 2018

Andrew Powell, barrister of 4 Paper Buildings, considers recent important judgments concerning surrogacy and highlights the focus of the Law Commission’s review of the law of surrogacy.

Andrew Powell, barrister, 4 Paper Buildings

Since my last update in March, there have been a trickle of cases concerning surrogacy, however of the two reported cases each have added to the rich case law already in existence.

X (A child – foreign surrogacy) [2018] EWFC 15
In this case the President of the Family Division was hearing an application for a parental order. Very little detail as to the background of the case is included in the judgment. However, in summary, the issue in the case concerned consideration of s54(2) of the HFEA 2008, which provides that the applicants must be married, in a civil partnership or in an enduring family relationship and s54(4)(a) of the HFEA 2008 which provides that "At the time of the application and the making of the order. the child's home must be with the applicants." All of the well-known criteria under s54 were satisfied.

In respect of the first issue, the applicants were married. However, one of the applicants was gay and the parties remained married, in what they described as a "platonic and not romantic" relationship. The question before the President was whether the status of their marriage satisfied the s54(2) criteria.  The President was unequivocal that the applicants were able to satisfy this part of the s54 criteria. The President observed:

7. The marriage, which took place in this country, complied with all the requirements of the Marriage Act 1949. There is, as Ms Fottrell has demonstrated, no ground upon which the marriage could be declared voidable, let alone void. There can be no question of the marriage being a sham. In short, the marriage is a marriage. The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there and in truth no concern of the judges or of the State. One needs look no further than Nigel Nicolson's Portrait of a Marriage, his acclaimed account of the unusual marriage of his parents, Vita Sackville-West and Harold Nicolson, to see how happy and fulfilling a marriage, more or less conventional, more or less unconventional, can be. But it is really none of our business. As the first Elizabeth put it, we should not make windows into people's souls.

8. A sexual relationship is not necessary for there to be a valid marriage. The law was stated very clearly, if in Latin (for the use of which I apologise), by Sir James Wilde in A v B (1868) LR 1 P&D 559, 562:

"The truth is, consensus non concubitus facit matrimonium."

The law has always recognised that a couple may take each other as wife and husband tanquam soror vel tanquam frater (as sister and brother), as our ancestors would have put it applying the canonists' maxim: see Sir John Nicholl in Brown v Brown (1828) 1 Hagg Ecc 523, 524, Sir Cresswell Cresswell in W v H (falsely called W) (1861) 2 Sw&Tr 240, 244, and, more recently, Morgan v Morgan (otherwise Ransom) [1959] P 92."

Satisfied that the applicants met this part of the s54 criteria, the President went on to consider s54(4)(a). The applicants resided in separate homes and the child's time was split between the two homes.

The President endorsed the approach adopted in number of cases where the applicants had separated by the time of the application and this provision was under scrutiny (see e.g.  Theis J's judgments in Re A and B (Parental Order) [2015] EWHC 2080 (Fam). The President concluded that it was absolutely clear the child's "home" was with both applicants and therefore found that it was manifestly in the child's best interests to make a parental order.

This case is interesting because it highlights that the court's approach in such cases is always to ensure that the child, the intended parents and indeed the surrogate, are afforded the optimum legal protection, which can only be guaranteed through the making of a parental order that has a transformative effect on all parties.

AB v CD ETC [2018] EWHC 1590 (Fam)
In this case Keehan J was concerned with twin children born in October 2010 following a surrogacy arrangement in India.  The respondents were the children's biological parents: CD and EF. 

CD and EF subsequently separated. CD remarried, and her new husband, AB, was the applicant in the proceedings.

At the time the children were born and placed in the care of CD and EF, they were not aware of the need to apply for a parental order, and no such application was made, and therefore, the children's legal parents remained the surrogate and her husband.

The proceedings began when AB made an application for a parental responsibility order in respect of both children. The application for PR was later withdrawn.

The following applications remained before the court:

• EF had also requested the court consider granting him parental responsibility.

• A joint application made by AB and CD to make the children wards of court.

• Applications made by both AB and CD for child arrangements orders that the children live with them, and orders restricting the exercise of EF's parental responsibility.

The court directed that the allegations made by CD and EF would have to be subject to a fact finding hearing. The second respondent (EF), who lived in another jurisdiction, declined to engage in the proceedings and elected not to give evidence in person or via video-link in support of his denials of the first respondent's (CD) allegations, or indeed findings he sought against the first respondent.

1. The court made the findings sought by CD and dismissed the findings sought by EF.

2. The legal reality on the ground was that the surrogate and her husband remained the twins' legal parents, it not being possible for CD and EF to satisfy two of the s54 criteria: s54(2) (i.e. that the applicants must be married or in an enduring family relationship) and s54(4)(a) (i.e. that the child's home must be with the applicants).

3. Keehan J went on to consider whether the court had the power to make a parental responsibility order in respect of EF. Keehan J observed:

46. The provisions of s.4 of the Children Act 1989, dealing with the acquisition of parental responsibility, and the making of parental responsibility orders, exclusively refer to the term 'father' and not in addition or alternatively 'a biological parent'.  In law, the second respondent is not the father of the children and thus he cannot acquire parental responsibility as provided for by that section, nor can the court make a parental responsibility order in his favour.

47. The provisions of s.4(a) of the Children Act 1989, dealing with the acquisition of parental responsibility by a step parent, provide:

'One, where a child's parent, parent A, who has parental responsibility for the child, is married to or a civil partner of a person who is not the child's parent, the step parent, (a) parent A, or if the other parent of the child also has parental responsibility for the child, both parents may, by agreement with the step parent, provide for the step parent to have parental responsibility for the child, or b) the court may, on the application of the step parent, order that the step parent shall have parental responsibility for the child'.

48. The applicant in this case is not married to a person who is, in law, the mother or the parent of the children.  Accordingly, the court has no power to make a parental responsibility order in his favour.

Accordingly, the court had no power to make a parental responsibility order, in respect of any of the parties.

In concluding his judgment, Keehan J observed that he was wholly satisfied that the welfare best interests of the twins required him to:

• make the children wards of court for the time being,

• make a child arrangements order in favour of CD and AB,

• make no order as to contact between EF and the children,

• give EF permission to withdraw his application for a child arrangements order,

• dismiss EF's deemed application for a parental responsibility order, and

• make an order restricting the exercise of the parental responsibility of the surrogate and her husband

Keehan J went on to observe that the law created an "absurdity" in not recognising the first and second respondents at the twins' parents and that the losers were "predominately the children who do not have their biological parentage recognised in law."

Finally, Keehan J observed:

76. I find myself extremely frustrated, as no doubt are the first and second respondents, that I am prevented, without any obvious good, legal or policy reason from making orders which explicitly recognise them as the legal mother and the legal father of these children.  Instead, I am forced, as have other judges before me, to construct a set of orders to secure the welfare of the children which fall very far short of the transformative effect of a parental order.

Yet again, this case serves to highlight the inadequacy of the legal framework which currently exists and at times, fails to provide the children born through surrogacy arrangements the optimum level of protection that is only afforded by a parental order.

Surrogacy and the Law Commission
The Law Commission confirmed on 4 May 2018 that the law related to surrogacy would be under review. Professor Nick Hopkins, Law Commissioner for England and Wales stated:

"Our society has moved on from when surrogacy laws were first introduced 30 years ago and, now, they are not fit for purpose."

"For many, having a child is the best day of their lives and surrogacy can be the only option for some who want a genetic link to the baby. But the issues are difficult and there is no quick fix. Now we want all those with an interest to get involved and help us make the law fit for the modern world."

The Law Commission has already identified 3 areas of concern, and lists them as:

• difficulties with parental orders – a parental order transfers parentage from the surrogate mother to the intended parents. But that process can only happen after the baby is born and is subject to conditions which may require reform.

• international surrogacy – the uncertainty in the current law may encourage use of international arrangements, where there are concerns about exploitation of surrogates.

• how surrogacy is regulated – the rules governing how surrogacy is undertaken should be brought up to date and further improved.

The Law Commission will now undertake a three year project which will contain law reform recommendations. It is anticipated that the Law Commission will publish a consultation paper by May 2019.

The HFEA paperwork cases
Re AL (Human Fertilisation and Embryology Act 2008) [2018] EWHC 1300 (Fam)

Sadly, these cases continue to come before the courts. In Re AL, the President was invited to make a declaration of parentage in respect of X, who together with Y, underwent treatment at a clinic at a time when they were not married.

The clinic discovered an irregularity in the forms, after the child was born, however by this time the X and Y had already registered the child's birth in good faith. Like so many of these cases, the first that they learnt of an irregularity was when the clinic contacted them.

A WP form consent form could not be identified but the court was satisfied that an internal consent form would suffice and meet the statutory requirements under section 37 of the 2008 Act, and the court was able to make the declaration sought.

17 July 2018