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Surrogacy and HFEA Update: April 2020

Andrew Powell, barrister of 4 Paper Buildings, considers recent cases relating to surrogacy and HFEA.

Andrew Powell, barrister, 4 Paper Buildings.

Whittington Hospital NHS Trust v XX [2020] UKSC 14 

Supreme Court case examining the approach to awarding damages for commercial surrogacy  arising from medical negligence.

In earlier updates I outlined the case of XX v Whittington Hospital  (the November 2017 update for the first instance decision in the High Court  and the February 2019 update for the Court of Appeal decision).

The case finally made its way to the Supreme Court in December 2019, in what was to be Lady Hale's last case before her retirement.  As it will be recalled, the hospital in this case admitted liability. The appeal raised three issues. First, can damages to fund surrogacy arrangements using the claimant's own eggs be recovered? Second, if so, can damages to fund arrangements using donor eggs be recovered? Third, in either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered?

By a majority, the Supreme Court dismissed the hospital's appeal with Lady Hale giving the majority judgment (with whom Lord Kerr and Lord Wilson agreed). Lord Carnwath gave a judgment dissenting on issue three, with which Lord Reed agreed.

Whilst this is essentially a case about negligence and quantum, the decision may have wider implications for how commercial surrogacy is regarded in the UK.

Lady Hale's judgment explained that under UK law, in essence, surrogacy arrangements are completely unenforceable; the surrogate mother is always the child's legal parent unless and until a court makes a "parental order" transferring legal parenthood to the intended parents; and the making of surrogacy arrangements on a commercial basis is banned.

On the third issue, UK courts will not enforce a foreign contract where it would be contrary to public policy.  However, as Lady Hale observed, there have been a number of developments since the 2001 Court of Appeal case of Briody v St Helen's and Knowsley Area Health Authority [2001] EWCA Civ 1010:

52. Added to that are all the other developments which have taken place since the decision in Briody. The courts have bent over backwards to recognise the relationships created by surrogacy, including foreign commercial surrogacy. The government now supports surrogacy as a valid way of creating family relationships, although there are no plans to allow commercial surrogacy agencies to operate here. The use of assisted reproduction techniques is now widespread and socially acceptable. The Law Commissions have provisionally proposed a new pathway for surrogacy which, if accepted, would enable the child to be recognised as the child of the commissioning parents from birth, thus bringing the law closer to the Californian model, but with greater safeguards. While the risks of exploitation and commodification are heightened in commercial surrogacy, they are not thought an insuperable ethical barrier to properly regulated arrangements.

Since the case of Briody the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commission has proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the intended parents' child from birth.  The overriding tenor of the judgment was therefore that where there is a foreign commercial surrogacy it should be supported and intended parents and children born via surrogacy should be afforded the maximum legal recognition.

Lady Hale concluded that awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy [para 53]. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well-established system in which the interests of all involved, including the child, are properly safeguarded. Lady Hale went on to observe that

"regulated systems where both surrogate and commissioning parents are at the mercy of unscrupulous agents and providers and children may be bought and sold should not be funded by awards of damages in the UK." [para 53]

In his dissenting judgment, Lord Carnwath opined that whilst there have been striking developments in society's approach to the many issues affecting family life, he considered that public attitudes remain deeply divided on the topic of commercial surrogacy and would therefore have applied the Court of Appeal's view in Briody in 2001.

AB (Foreign Surrogacy -Children Out of The Jurisdiction) [2019] EWFC 22 

Application for a parental order in circumstances where the subject children are outside the jurisdiction.

In this case Theis J considered the circumstances in which the court could make a parental order when the subject children were not physically present in the jurisdiction. The applicants for the parental order were A and B. Both were born and married in Iran and came to the UK as a result of A being at risk because of his political views. B subsequently secured British citizenship and A was granted unlimited leave to remain in the UK. 

Following the death of their only child in a car accident, they considered the possibility of surrogacy in light of B's health and her age. A surrogacy arrangement took place in Iran using A's gametes.  The surrogate gave birth in 2017 and A's biological connection with the children was confirmed with DNA testing.

Following the children's birth, B flew to Iran. "From then until December 2018 (save for one week in June) one or other of the applicants have been in Iran to be able to help care for the children. The children are based with the wider family. Both applicants registered the birth in Iran with their names on the birth certificate." (at para 16)

The case presented a number of immigration and logistical issues with the children remaining in Iran. As Theis J observed:

18. Firstly, to bring the children to the UK in order to apply for parental orders, it records that the Home Office guidance The Inter-Country Surrogacy and the Immigration Rules, published on the 1st June 2009, states that in order to bring children born outside the UK following a surrogacy arrangement to the UK to apply for a parental order they need to make an application outside the immigration rules, which is discretionary. The guidance says that the application for a parental order must have been made within six months of the child's birth, and that evidence must be provided to suggest that a parental order is likely to be granted. The guidance also provides that applicants should try and meet as many of the usual rules as possible, for example, ability to maintain and accommodate, and that they have broken ties with the surrogate mother. The guidance says that leave to enter for twelve months will be granted.

19. It then goes on to detail other matters. It states that where children are brought into the UK without a legal parent or close relative, they are treated as a privately fostered child under the Children Act 1989 or equivalent legislation. On arrival in the UK they must notify the local authority that the child is living with them so that they can monitor the child's welfare. The guidance also provides that once a parental order is made, an application can be made for indefinite leave to remain and to register a child as British.

20. Section 55 of the Human Fertilisation and Embryology Act 2008, which came into force on the 6th April, supersedes this guidance, and says that a child subject to a parental order made in the UK will be treated in the same way as a child that is adopted. This means that where one or more of the parents are recognised in a parental order as British then the child becomes British from the date of the order under s.2(1) of the British Nationality Act 1981. Here, the applicant, B, is a British citizen otherwise than by descent and so would pass on her British nationality to the children. This is confirmed in the Home Office's Nationality Instructions which says that a child subject to a parental order made in the UK will become a British citizen from the date of the order if either one of the persons who obtained it is eligible.

21. The second option is to bring the child to the UK after the making of a parental order. A child who is the subject of a parental order made in the UK will become a British citizen from the date of the order if either one of the persons who obtained it, here B, is a British citizen. There is no need to register children as they will be British citizens by descent via the commissioning mother who is British. The commissioning parents can then apply for British passports for them.

In respect of the s54 HFEA 2008 criteria, one of the key legal hurdles to surmount was the requirement under s54(4)(a) that at the time of the application and the making of the order, the child's home must be with the applicants. Theis J observed:

40. [T]he courts have taken a purposeful construction to this requirement in s.54. In Re X (A child: surrogacy time limit) [2015] 1 FLR 349 the applicants were separated at the time the application was made, although reconciled by the time the judgment was given, but importantly both were fully involved in the child's life throughout. The former President, Sir James Munby, said as follows at [66]:

"The commissioning parents were separated at the time the application was issued but they were not divorced so they remained husband and wife within the meaning of s.54(2)(a) and are now, as I've mentioned, reconciled. They made the application jointly so it was within the meaning of s.54(1) an application made by two people. The real question arises in relation to s.54(4)(a): can it be said that X, the child's, home, was 'with them' at the time of the application. It plainly is now."

He continues at [67]:

"There are in my judgment two reasons why this question should be answered in the affirmative. In the circumstances as I have described them in [8] above, X has his home with the commissioning parents, with both of them, albeit that they lived in separate houses. He plainly did not have his home with anyone else. His living arrangements were split between the commissioning father and the commissioning mother, and it can fairly be said that he 'lived with' them."

41. In KB & RJ v RT [2016] EWHC 760 (Fam) Pauffley J concluded that the child lived with her parents, despite being stranded in India because of the level of contact she had with them, and their role in her day to day care. As she aptly described at [45]: "The concept of home must and should be construed flexibly".

42. In this case the evidence establishes that the children had their home with the applicants in the sense that the children's living arrangements are entirely arranged by and provided for by the applicants. When they are not in Iran, they are in Skype contact two or three times a day. The evidence points to them both remaining utterly committed to the children. They have arranged to be there for virtually all the time, and though there are other circumstances that have driven them to be apart, either B's health or A's need to be able to return to work, the Children's Guardian commends them for the arrangements that they have made to ensure the children's stability of care. They have had to remain based here since December 2018 to ensure the evidence is available to ensure this hearing is effective.

43. I am quite satisfied taking a broad and purposeful interpretation of the term "home with", this requirement is satisfied. In any event s.3 of the Human Rights Act 1998 makes clear that primary legislation should be read in a way that is compatible with Convention rights. The children and the applicants' Art.8 rights are clearly engaged in their case, their Art.8 rights point towards the court seeking to be in a position to secure the children's legal position with the applicants, so that they may be able to enjoy family life together.

Once again, the impact of Sir James Munby P's decision in Re X (A child: surrogacy time limit) [2014] EWHC 3135 (Fam), [2015] 1 FLR 349  continues to have a long lasting impact on how a court can broadly interpret statutory  provisions, thereby  enabling the judges who hear these applications to reach a sensible conclusion that will ultimately advance the welfare of the children. 

The final issue this case had to grapple with was the role of the parental order reporter in circumstances where they were unable to physically meet the children.  In Z (Children: foreign surrogacy: allocation of work: guidance on Parental Order reports) [2015] EWFC 90, [2017] 4 WLR 5  Russell J set out the role of the parental order reporter:

"Investigate the matters set out in s.54(1) to (8) of the 2008 Act, as required under the Family Procedure Rule 16.352A, and to do so in accordance with para.10.1 of the Practice Direction 16A which gives further directions as to how those investigations are to be carried out, including that the Parental Order reporter 'should contact or seek to interview such persons as the Parental Order reporter thinks appropriate, or the court directs'.

The combined provisions of s.54(4)(a), that is the child's home 'must be' with the applicants, the emphasis on the welfare of the child provided by the 2010 regulations, the incorporation of s.1 of the Adoption and Children Act 2002, and the procedural rules and guidance, are that to be able to investigate as required and to base their conclusions and recommendations as to the subject child's welfare on evidence, the Parental Order reporter must see the child with the applicants." [at para 88]

Theis J was satisfied on the evidence available to the court that the guidance from Re Z had been followed and that the parental order reporter (who was also the children's guardian, the children having been joined to the proceedings) had had sufficient opportunity to see the children with the applicants via two Skype video calls.

Before making parental orders, Theis J granted a time-limited adjournment to enable the Secretary of State for the Home Department (SSHD) to be given notice of the application and for time for any representations that the SSHD wished to make.  The SSHD was given notice and did not wish to make any representations and parental orders were made shortly thereafter.

R. (on the application of H) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin)

Human rights case in which it was argued on behalf of a child that her inability to register her genetic father on her birth certificate breached her ECHR Article 8 and 14 rights

This case concerned a child (H), aged 3, who sought a declaration that the inability of her genetic father (A) to be named on her birth certificate, by reason of the Human Fertilisation and Embryology Act 2008 section 35 and 38, breached her rights under Articles 8 and 14 of the ECHR.

In August 2015, A and B (a same-sex couple) entered into a surrogacy arrangement with C and D, who were at all material times married. In September 2015 C underwent an assisted reproduction procedure in Cyprus, using donated eggs, and sperm from A and B. C had no genetic relation to H therefore.

C gave birth to H. A DNA test confirmed A to be the genetic father of H.

C and D registered the child's birth on 10 May 2016, and were named as the mother and father respectively on the birth certificate. C and D did not consent to the making of a parental order under section 54 HFEA 2008.

Proceedings to determine the child's place of residence, contact, and the extent to which A and B should have parental responsibility for the child, were heard by Theis J in December 2016. Theis J ordered that A and B, as well as C and D, should have parental responsibility for H. Further the following child arrangements order was made:

a) The child shall live with A and B.

b) A and B shall make all of the day to day decisions in respect of the child.

c) A and B shall make all decisions concerning her education, medical treatment and "all other parenting decisions".

d) Further, a specific issues order was made changing the child's name to incorporate the surnames of A and B.

e) C and D should have regular contact with H throughout the year.

If this case sounds familiar, it  is because you might be aware of the  decision of the Court of Appeal dismissing C and D's appeal against Theis J's judgment (Re H (A Child – Surrogacy Breakdown) [2017] EWCA Civ 1798) (see my earlier discussion on this in the March 2018 update

Section 35 HFEA 2008 provides that where a birth mother was married to a man who was not the genetic father, her husband will automatically be treated as the father unless he has not consented to the placing in her of the embryo or the sperm and eggs, or to her artificial insemination. Further, by section 38(1):

"Where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child."

No certificate from the Parental Order Register was issued in respect of the child, as no parental order could be made, unless and until C and D consented to the making of an order.

Article 8
Lieven J concluded that sections 35 and 38 HFEA 2008 were not incompatible with the child's Article 8 rights. The court concluded:

75.  […] The starting point is that surrogacy raises intensely difficult moral and ethical issues, where complex balances have to be drawn in any legal scheme. Those balances must seek to protect the interests of the children concerned, and take into account the wider ethical dimensions. It will necessarily be the case that, at various points, the scheme will give precedence to one policy priority over some other issue.

There was a wide divergence of approach among Council of Europe states. The court considered the case of Mennesson v France (application no. 65192/11), and concluded that a balance had to be struck between giving states a margin of appreciation, and ensuring that the children's rights were appropriately protected. In both the Strasbourg judgments and the domestic statutory scheme, the court concluded that the requirement of the UNCRC article 3, to protect the best interests of children, are fully met by the balances that have been struck in the legislative scheme.

The UK legislative scheme had been carefully considered by Parliament in 2008, and the issues raised had not fundamentally changed since then. In particular, during the passage of the 2008 Bill at the House of Commons Private Bill Committee Dr Evan Harris MP proposed an amendment to the Bill which would have allowed the intended father to be the legal father at birth. The amendment was opposed by the Government, and ultimately withdrawn. The court considered it appropriate to give a wide discretion to Parliament in setting statutory provisions. 

Further, a breach of Article 8 had been found in Mennesson because of the absolute inability of children in France to have their genetic father accorded legal status. In the UK, through the parental order process under section 54 HFEA 2008, genetic fathers are able to establish their legal parenthood. Whilst the child could not rely on section 54 (because C and D did not consent to the making of a parental order), she had not argued before the court that section 54 and the requirement for consent were incompatible with her ECHR rights. 

The court went on to consider whether interference with any Article 8 rights of H were justified, considering (i) legitimate aim, (ii) necessity in a democratic society and (iii) justification. The court considered these together. The court addressed the Defendant's three limbed arguments:

84.  The Defendant advances three limbs of justification. The first is that there is a need for legal certainty so that the child, and anyone else, can know who that child's legal parents are. One aspect of that legal certainty is that every child should have at least one parent and no more than two parents. The need for legal certainty is in my view impossible to overstate. Happily for H, she has four people who want to be her parents. For some children the problem may be the other way around, and none of the adults concerned wish to be the legal parents. It is essential that the law is clear and precise as to who is the legal parent. That end result is strongly in H, and all surrogate children's, interests.

85.  It would be possible to devise a scheme in a way that created legal certainty, but with the genetic father being the legal parent. However, as is clear from Gallagher the fact that there might be another way to meet the legitimate aim does not mean the scheme is incompatible.

86.  The second limb of justification is that gamete donors should not be legal parents. Lying behind this are two policy aims – that the donors do not become the legal parents, and that the parents of children conceived by donated gametes are that child's legal parents. I can see that this limb might be problematic under Article 8 if there were not the parental order provisions which do allow the status of gamete donors, such as A, to have legal status but only with consent. The importance of ensuring that gamete donors cannot be forced to become legal parents, because of the lack of an automatic provision such as in s.35 and 38  is in my view correct.

87.  The third limb is the overarching objective of ensuring that surrogacy arrangements are not enforceable in domestic law. Although this objective does not directly relate to sections 35 and 38 HFEA, it is one element of the interlocking scheme. If the genetic father could require himself to be named on the birth certificate in place of the husband then that would tip the balance towards a more enforceable, or at least compellable, position for the intended parents. It would mean that the husband was displaced as the legal parent leaving the child at birth with legal parents in different family units. Of course, such a situation may arise with a child conceived other than through a surrogacy arrangement, but it is easy to see that such an outcome does not meet the policy objectives. These judgments as to where the balance in such a complex scheme lies, are in my view plainly for Parliament. Again, as Gallagher makes clear it is lawful to have a statutory scheme with "bright lines", such as here the naming of the husband rather than the genetic father.

88.  In reaching the conclusion that the interference with H's Article 8  rights is justified, I also take the view that the interference is relatively limited, as Ms Hannett argued. H will in reality know and understand her genetic heritage because it is perfectly open to A to explain it to her, and A and B have day to day parental responsibility for her. Therefore, unlike the child in Jaggi v Switzerland (58757/00) there is no question of the child simply not knowing or understanding her heritage. In Jaggi the child (by then an adult) had no way of establishing his genetic identity.

89.  In terms of the "fair balance", the direct impacts on H of A not being named on the birth certificate are limited. The Claimant put forward two specific matters, namely Brazilian nationality and inheritance. The evidence is not absolutely clear but I am prepared to accept that, if A was named on the birth certificate, H would have an automatic right to Brazilian citizenship, whereas as the position stands she would have to apply. That may be a detriment, but it is not possible to know whether H would wish to be a Brazilian citizen. Certainly, at the present time there is no evidence of any harm to H from her not being a Brazilian citizen. Further, as Ms Hannett submits, the domestic law of other countries is not the responsibility of the UK. The evidence on inheritance impacts was even more speculative. It is possible that there could be theoretical detriment because the presumptions about support of children in inheritance law would not apply. However, such detriment can plainly be overcome by A making testamentary provision for the Claimant, so any such harm is both theoretical and fully capable of being mitigated.

Article 14
The court finally concluded that there was no breach of Article 14. Although the facts fell within Article 14, the comparators suggested by the child were not analogous. The first "comparator" put forward was of a child born of a "sexual encounter" was not analogous. The second and third "comparators" put forward were of children conceived by way of artificial insemination or assisted reproduction without D's consent. In neither case would the surrogate mother's husband be automatically named on the birth certificate. These were also found not to be analogous. The fact that D consented to the treatment was fundamental to the ascription of legal parenthood. He accepted that he would be the legal parent, subject to any subsequent parental order, and effectively as C's spouse he was agreeing to and being a party to the whole arrangement. If he had not consented, the balances struck in the scheme would inevitably be different

This case once again reflects a repeated theme where a child's "social reality" doesn't match the way in which the child's legal status is recorded formally by the state. This may have wider social and legal implications for the child as they grow older in circumstances where the child's primary carers will never be afforded the transformative status that legal parenthood confers.  The case also highlights the issue of a court being unable to 'dispense with consent' to make a parental order which Theis J was unable to overcome in the Family Division proceedings, but was able to make an order under s8 of the Children Act 1989, affording A and B the ability to exercise parental responsibility to the exclusion of C and D.

PQ v RS and others (Legal Parenthood: Written consent) [2019] EWFC 65 

Errors of Form PP: application by a father for a declaration of parentage resisted by mother on the grounds that the equitable remedy of rectification was unavailable to him due to delay and conduct post-separation.

This case concerned the parentage of children born to a couple who had used donated sperm and who had then separated. It was concluded that the status of parentage was that reflected by the common intention of the parties at the time the consent form was submitted. Mistakes in the completion of the form could be rectified as they had clearly been made in error.

The applicant (PQ) applied for a declaration of parentage and the first respondent (RS) cross-applied for a declaration of non-parentage.

X and Y had been in a relationship since 2008 and sought fertility treatment at a clinic. In 2013, two children were born to Y using donated sperm. Prior to treatment PQ and RS had both believed that they were consenting to X becoming a parent of any child born as a result of treatment. They had both believed they had signed whatever was legally required to ensure they both became the parents. PQ had been named as the children's father on the birth certificates. PQ and RS were later married in 2014.

Following Cobb J's decision  in AB v CD [2013] EWHC 1418 (Fam), the Human Fertilisation and Embryology Authority required registered clinics to carry out an audit of the consents to parenthood required by the provisions in the HFEA 2008. An audit was carried out at the clinic that the treatment had taken place and it was discovered that PQ and RS had completed the consent form (Form PP) incorrectly. In particular, PQ and RS's names were in the wrong parts, and this had not been picked up by the clinic at the time. The couple were informed of that but took no further steps.

In 2017 PQ and RS separated and, shortly afterwards, following a dispute between them, Y changed the children's names by deed poll. RS also told the children that PQ was not their biological father, but had been living with them at the time they were born.

After separating, PQ applied for a child arrangements order in October 2017 and a declaration of parentage in April 2019.

Reference was made to a series of cases involving mistakes. The court can in appropriate cases correct mistakes on the face of documents if the mistake is "obvious on the face of the document and it is plain what was meant" (In the matter of HFEA 2008 (cases A-H, Declaration of Parentage) [2015] EWHC 2602 (Fam)). The court can do this by way of (a) construction, or (b) rectification. In both cases, the parties' separation is "legally irrelevant … for … the status of all parties finally and irrevocably crystallised at the moment when the embryo or the sperm and eggs were placed in the mother, or the mother was artificially inseminated, and this treatment resulted in the birth of the child (Re Y (Human Fertilisation and Embryology Act 2008) [2017] EWHC 784 (Fam)).

PQ submitted, referring to Re Y, that the court should correct the mistake made by both parties on Form PP. He argued that the legal position crystallised at the time the consents were submitted in the context of the subsequent treatment and the birth of the child.

RS argued that PQ's conduct, including his delay in bringing the declaration application and his consistent reliance on his lack of parenthood when it came to financial remedy proceedings and child maintenance payments, should deny him the relief sought. In particular, PQ had written to the CMS on 10.11.2017 stating that he had obtained written confirmation from the Clinic that he was not the legal parent of the children. He enclosed the clinic's letter from 2017. Through this PQ had successfully challenged RS's application for child maintenance through the CMS as he was not the father of the children. It was RS's submission that because rectification is a discretionary equitable remedy, it should be denied.

PQ argued that the parties' intentions at the time the consents were signed was important and while 'conduct' may be relevant in other children proceedings, it was not for a declaration of parentage.

The children were joined as parties and a Guardian report concluded that both PQ and RS both intended each to be legal parents, and had subsequently used the clinic's error in their ongoing private law dispute. The Guardian concluded that,

'A declaration will serve to resolve the uncertainty about PQ's legal position and will afford both children the permanence and security of having two legal parents. It will also give effect to the legal relationship that had always been intended when the parents embarked on the fertility treatment.'

PQ's application for declaration of parentage was granted, and the cross-application of the RS for non-parentage was refused.

It was held that matters which arose post-separation were not relevant in determining what PQ and RS's common intentions had been at the relevant time. The court could correct errors in a form either by rectification where the requirements for that were satisfied, or where the mistake was obvious on the face of the document, by a process of construction without a need for rectification. The court held:

56.  On the evidence the court has, the errors in the form are clear and obvious mistakes, the Form PP does not reflect the agreement of PQ and RS at the time, as recorded in the agreed recital in the August order (see [31] above). The corrections required are equally clear, namely placing the details in the correct boxes by transposing the names in sections 1 and 2 (in accordance with Case AA).

57.  PQ, the Children's Guardian and the Clinic all agree the declaration of parentage should be made, that it can be made on either basis (construction or rectification) and do not consider the facts of this case, even taken at their highest in favour of RS, justify rectification as a remedy being refused. They rely on what Sir James Munby said in Re G (HFEA 2008) [2016] EWHC 729 [18] when he expressed 'some difficulty' in the context of the HFEA 2008 a claim for rectification if otherwise made out 'could ever properly be refused on any of the discretionary grounds identified by Lord Neuberger' namely delay, change of position or third party reliance (see Marley v Rawlings [2014] UKSC2 at paragraph [40]). They submit rectification in these circumstances, where it seeks to give effect to the intention of the parties at the relevant time; being the time of implantation and successful conception. It is in that context that the parties' conduct post separation has little connection with the relief sought, as the legal status crystallises at the relevant time. The purpose of rectification is to permit equity to rectify the terms of the written instrument, namely the Form PP, so as to make it accord with the true agreement of the parties (namely the acquisition of legal parenthood by PQ).

58.  I agree with those submissions. In the context of PQ's application, the focus of the court is the common intention at the time the form was submitted, and the subsequent treatment that resulted in the birth of the child. The position of status crystallises then. As set out in the directions order in August, the common intention and agreement at that time was they were consenting to PQ becoming the parent of any child born as a result of the treatment at the Clinic and they both believed they had signed whatever was legally required to ensure that they both became parents. In those circumstances the fact that Form PP was completed incorrectly by them was clearly an error. In the absence of any matter being raised regarding public policy in the terms provided in s 58 FLA 1986, which Ms Kirby did not suggest the conduct she complained of did, it is difficult to see in the circumstances of this case that the conduct raised by Ms Kirby has any relevance to the issue this court has to determine.

Therefore, the common intention and agreement at the time they were consenting was to PQ becoming the parent of any child born as a result of the treatment at the clinic, and PQ and RS both believed that they had signed whatever was legally required. The fact that Form PP had been completed incorrectly was clearly an error. The errors in Form PP could be corrected by rectification so it accorded to the true agreement of the parties at the time.

5 May 2020