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Surrogacy and HFEA Update: December 2020 (Part 1)

In the first part of his surrogacy and HFEA update, Andrew Powell of 4PB analyses some important recent judgments within the England and Wales jurisdiction.

Andrew Powell barrister, 4PB.

For Part 2 of this article, dealing with recent cases in the jurisdictions of Scotland and Northern Ireland, click here.

Re A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam)

A decision in which Keehan J reads down various limbs of HFEA 2008, s.54 in order to make a parental order. The three issues in the instant case were that the application was made outside of the six-month time limit (s.54(3)); whether at the time of the application the mother and father could be found to be "two persons who were living as partners in an enduring family relationship" (s.54(2)(c)), and whether the child's "home" at the time of the application and the making of the order could be said to be with both applicants (s.54(4)(a)).

The case concerned a child (A) born in February 2017 as a result of a surrogacy arrangement in the UK. A's intended parents (M and F), who were also his biological parents, separated during the course of M's pregnancy.  Shortly after A's birth, M applied for A to be made a ward of court. The judge confirmed the wardship and noted that F had indicated he had no wish to be involved in the proceedings, nor to play any part in the upbringing of A.

M made an application as a single applicant for a parental order in July 2017. The application was stayed because it pre-dated the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, which in October 2018 brought into force HFEA 2008, s.54A, which permitted applications for parental orders by single parent applicants.

In the meantime, however, F changed his position, indicating he wished to have contact with A and did not wish to relinquish his legal parenthood. A joint application for a parental order was made on 16 December 2019 by the parties. By the case management hearing in May 2020, F was having indirect contact with A, and directions were given for the Guardian to consider whether and, if so, how contact should progress.

The court had to consider whether a parental order could be made in circumstances where:

i. The joint application was made some two years and four months after the prescribed six-month time limit (s.54(3));

ii. The applicants were no longer in a relationship (s.54(2)(c)); and

iii. The child's "home" at the time of the application and making of the order could not be said to be with both applicants, in circumstances where the applicants were separated and the child had never lived nor had any direct contact with F (s.54(4)(a)).

The court considered the leading authorities, and provided a useful summary of the principles that needed to be applied when considering whether or not the s.54 statutory criteria were met (§54):

i) when interpreting legislative provisions, the court must have regard to the underlying purpose of the requirement and ensure the interpretation does not 'go against the grain' of the intentions of Parliament;

ii) s.3 of the HRA requires the court, where possible, to give a Convention compliant interpretation of statutory provisions;

iii) a failure to adhere to the six-month time limit to make an application for a parental order is not fatal to the making of the order;

iv) the questions whether the applicants are in an enduring family relationship and whether the child has his home with the applicants are matters of fact for the court to determine;

v) where the court finds that the Article 8 and/or Article 14 rights of the child are engaged, the biological and social reality of the child's life must prevail over legal presumption;

vi) the existence of family life is not defined nor is its existence constrained by legal, societal or religious conventions;

vii) there are no minimum requirements that must be shown if family life is to be held to exist;

viii) what is required is an unambiguous intention to create and maintain family life, and secondly, a factual matrix consistent with that intention which is clearly a question of fact and degree;

ix) the mere fact that the parents are now separated is not fatal to the application for a parental order;

x) similarly, the mere fact that the parents live in separate homes is not fatal to the application;

xi) if a parental order is not made, the child is likely to be denied the social and emotional benefits of recognition of his relationship with his parents and would not have the legal reality that matches his day to day reality;

xii) the transformative effect of a parental order cannot be overstated; and

xiii) the ultimate test for the making of a parental order is the welfare best interests of the child.

The following factors were considered of crucial significance in the instant case (§55): the mother and father had, prior to the surrogacy arrangement, been in an enduring family relationship and desperately wished for a child of their own, and each had provided their gametes to produce embryos; A had spent his entire life with his mother; at the time of the joint application, the mother and father were committed to playing key roles in A's life, and to his care and wellbeing, and had or wished to have a close and loving relationship with him, and to work together to promote his welfare throughout his minority and beyond; and finally both wished to have their biological status as A's parents recognised in law.

The court held that notwithstanding the joint application was made outside the six-month time period, this was not a bar to making a parental order; to find to the contrary would be nonsensical and deprive the child of the enormous benefit that a parental order provided (§56).

The mother and father were committed to the child's welfare and agreed both would play an active role in A's future upbringing. A, M and F were therefore in an enduring family relationship, and both A's Article 8 and 14 rights were engaged (§57). 

Further, in light of the parents' intention that A would be cared for by both of them, albeit not necessarily, and not at present, on the basis of an equal shared care arrangement, a wide and purposive interpretation to the word "home" had to be applied. A had his "home" with M and F (§58).

A parental order had a transformative effect, was fundamental to his identity and status for the whole of his life, and was overwhelmingly in A's best interests.  The court adopted a purposive interpretation to ensure that the statutory provisions of s.54 were applied in a ECHR compliant manner with respect to Articles 8 and 14, and granted a parental order accordingly (§60-64).


Y v Z [2020] EWFC 39

Another decision before Theis J in which the court 'read down' the provisions in the HFEA 2008 s.54, to make a parental order in circumstances where the child's intended father had died after embryo transfer, but before the child's birth.

The intended parents, Mr Y and Mrs Y, were married in 2013, and entered into a surrogacy agreement with the respondents, Mrs Z (the surrogate mother) and her partner, Mr Z in 2017. The agreement outlined the parties' intentions, which included the intended parents applying for a parental order after the child's birth.

An embryo was created using the gametes from Mrs Z and Mr Y, and was transferred into Mrs Z in May 2018.

Sadly, five months into Mrs Z's pregnancy, Mr Y died unexpectedly. The child (X) was born, and had been in Mrs Y's care ever since the birth.

Mrs Y wanted to have Mr Y recognised as X's legal father, and sought a parental order (her application made jointly on behalf of herself and Mr Y). The application was made within six months of X's birth. The application was unconditionally supported by the respondents. Mrs Y's statement set out the significance both for her and X of the parental order being made.

However, the death of Mr Y meant certain requirements of HFEA 2008, s. 54 were not met. Mrs Y invited the court to "read down" the s.54 requirements under HRA 1998, s.3 so they were compatible with Convention rights.  This included: the requirement for there to be two applicants (s.54(1)); the status of the applicants' relationship (s.54(2)(a)); the requirement for the child to have her "home" with the applicants at the time of the application and the making of the order (s.54(4)(a)), and for the applicants to be over the age of 18 at the time of the making of the order (s.54(5)).

Legal Framework

Theis J considered Ghaidan v Godin-Mendoza [2004] All ER (D) 210, a seminal decision on the effect of HRA 1998 s.3. Theis J went on to discuss a number of cases which have considered the extent to which HRA 1998, s.3 has enabled the court to "read down" the requirements in s.54, so they are compatible with Convention rights (including A v P [2011] EWHC 1738 (Fam); Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), and Re Z [2015] EWFC 73).

It had also been raised on behalf of Mrs Y the extent to which the court was required to be satisfied that Mrs Y, acting as executor of Mr Y's estate, had locus to issue an application for a parental order on his behalf. In initial written and oral submissions Mrs Y invited the court to consider whether under s.1 Law Reform (Miscellaneous Provisions) Act 1934 ("LR(MP)A"), Mrs Y is able to bring a claim on behalf of Mr Y's estate, or alternatively whether the right to apply for a parental order 'vests' before the child in question is born. If the former was the case, Mrs Y would stand in her own right as one of the applicants, and as Mr Y's executor, she would also stand in his shoes as the second applicant. Such circumstances would potentially mean the condition for two applicants is met under s.54(1)). Consideration was given to a number of cases on this issue.

Submissions

For a number of reasons (outlined at §60), the later written submissions filed on behalf of Mrs L shifted the focus on the ability of the court to read down the relevant provisions of s.54, as opposed to focusing on whether a claim could be made on behalf of Mr Y's estate pursuant to LP(MP)A, s.1.  (Nonetheless, in the event the court held it needed to consider this, which it eventually did not, the summary route the court was invited to take is set out at §84.)

It was put forward on behalf of Mrs Y that a combination of the amendments to and features of the HFEA 2008 supported the submission that it would go with "the grain of the legislation" to enable X to also have her father registered on her birth certificate, which would be done if a parental order was made. Further, it would go against "the grain of the legislation" for X, uniquely among children conceived through assisted conception, to be denied that right in contravention of both her Article 8 and 14 rights. The submissions included the following points:

1. The history of the HFEA 2008 supports the contention that a parental order made in the terms sought would not offend public policy and would "go with the grain of" the legislation (§63-68): It was submitted that the argument for reading down in Re Z [2015] failed as it was clear Parliament had taken a deliberate policy decision to exclude single parents. The requirement for two applicants was a key feature of the "pith and substance" of the legislation; it was not here, and there was no evidence Parliament ever even considered the possibility of an intended parent dying during a surrogacy pregnancy, or that such person should be excluded from obtaining a parental order. Further, the grant of incompatibility by the court under s.4 HRA in Re Z (No 2) [2016] EWHC 1191 was made with the government's agreement, and led to Parliament enacting the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018. During discussion that led to the Order being made, it became clear it was no longer the "thrust of the legislation" to exclude any categories of applicants from obtaining parental orders as a result of their relationship status.

2. The provisions in HFEA 2008, ss.35-37 suggest legal parenthood status is acquired from the date the transfer of the embryo or artificial insemination takes place (§69-72): In all situations therefore, a father who dies during a pregnancy is already and remains the child's legal father for all purposes. He can also be registered as the father on his child's birth certificate.

3. The provisions in HFEA 2008, ss.39-40 provide for recording fathers on birth certificates where the embryo transfer or artificial insemination takes place posthumously (§73-76).

Discussion and conclusions

Theis J held that both ECHR Articles 8 and 14 were engaged:

i. X was not able to establish a family life with her biological father due to his premature death; however, as Munby P has made clear in Re X (A Child) (Parental Order: Time Limit) [2014], Article 8 rights referred not only to family life, but also to private life. The state had a responsibility to ensure it respected X's right to a private life and that extended to ensuring recognition of her identity as the child of her deceased father.  Further, Article 8 rights included "the right to adequate legal recognition of biological and social ties" (D v ED (Parental Order: Time Limit) [2015] EWHC 911 (Fam)).

ii. In relation to Article 14, X's Convention rights should be secured without discrimination on any ground including birth or other status. Without a parental order being made, X was not able to have a birth certificate reflecting the relationship and connection she had with Mr and Mrs Y as her parents. This was solely by virtue of the circumstances of her birth through surrogacy.

Theis J went on to consider that these rights were interfered with, and whether such interference was justified and proportionate. Theis J concluded that Parliament could not have intended "the gate should be barred forever" (adopting Munby P's words in Re X (A Child) (Parental Order: Time Limit) [2014]) to a parental order being made in circumstances such as this, where the intended father dies after the embryo transfer, but before the child's birth (§93):

1. Firstly, there was no reason to believe that Parliament either foresaw or intended the potential injustice which would result if a parental order could not be made in the circumstances of the instant case.

2. Other provisions in HFEA 2008, such as ss.35-37, provided clarity about the status of the father of children born as a result of assisted conception, at the time when the embryo is transferred, or artificial insemination takes place, provided certain safeguards are in place (in particular consent, which was not an issue in this case).

3. HFEA 2008 ss.39 and 49 provided clarity as to the status of the father in circumstances of sub-paragraph (2) where they take place after his death, again with safeguards in place relating to consent.

4. Parliament has recently, when considering the declaration of incompatibility made by the court in Re Z (No 2) [2016], signalled that it seeks to ensure that the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status.

5. A parental order was the only route by which X could have her status regarding Mr and Mrs Y recognised in a way that was intended by the surrogacy arrangement. This is what a parental order was specifically created for.

This conclusion could equally be justified having regard to the Convention rights involved (§94):

1. Both Articles 8 and 14 were engaged.

2. It was held that X certainly had an established 'private life' right for her own identity to be protected by legal recognition of her relationship with Mr Y.

3. Although the court concluded that Parliament cannot have intended that a child in X's position would be excluded from such recognition, without the "reading down" required by s.3 of the provisions in HFEA 2008, s.54, it could prevent a parental order being made.

4. "Reading down" did not "go against the grain of the legislation"; on the contrary, it sought to provide the order which was specifically created for a child born as a result of a surrogacy arrangement. The parental order was specifically created for a child born as a result of a surrogacy arrangement, such as in this case.

5. No alternative order could properly and accurately to reflect X's identity, including her relationship with Mr Y.

6. For X her connection with her biological father would be safeguarded in any other birth circumstances naturally or by way of assisted conception, consequently it is discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement amounts to a breach of her Article 14 right to enjoy her Article 8 rights without discrimination on the grounds of birth.

7. Mrs Y's Article 14 rights were also engaged. She is discriminated against based on her relationship status as a widow, rather than being married.

8. The consequences of not making a parental order in this case are that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.

9. The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X's security and identity in a lifelong way, respecting both her Article 8 and 14 rights.

Theis J concluded that making a parental order would not be incompatible with the "underlying thrust of the legislation being construed" and that the words sought to be implied into s.54 "go with the grain of the legislation."  The legislation was "read down," and all of the s.54 criteria were therefore met. A parental order would meet X's lifelong welfare needs, and only that order would recognise X's reality in a transformative way, as the child of her parents, Mr and Mrs Y (§95-99).


X (A Child : child arrangements order) [2020] EWFC 49

A decision by Theis J in which a father's application for a child arrangements order in respect of a child conceived through artificial insemination was refused, the court concluding the child's welfare needs required a period of stability with minimal risk of disruption.

The case concerned a 6-year-old girl (X), who had been conceived through artificial insemination. X's legal parents (Y and Z) had been in a civil partnership at the time of her birth. X had been conceived by Y using sperm from W, the applicant father, after the parties had met online. W maintained his understanding had been that Y and Z were looking for a co-parenting arrangement.

Y and Z had stopped X's contact with W in September 2014. In November 2015, W's application for direct contact was refused and an order made for indirect contact on an annual basis, which had continued to take place. Subsequently, Y and Z separated, and a child arrangements order for X to have direct and unsupervised contact with Z was made.

In August 2019, W re-applied for permission to make an application for a child arrangements order, and sought direct contact six times a year. It was these proceedings the court was concerned with. Y's position at the hearing was that it was not in X's best interests to spend time with W at this time. The Guardian agreed, recommending there be no order in respect of W's application, and that the indirect contact should continue. An order under s.91(14) for a period of five years was also recommended. W relied on X's right to know who her biological father was, and to spend time with him.

The court noted X was settled and her current situation was meeting her physical, emotional and educational needs. Any time with W would mean a change for her. She had managed considerable disruption in her short life (including three sets of proceedings), and her welfare required a period of stability with minimal disruption.

The court concluded that X's welfare needs would only be met by a refusal of the application (§32):

1. Whilst it was important for X to have information about her background and identity it was not a right that existed irrespective of her welfare.

2. Y's evidence that she had sought and taken advice about how to meet X's needs in relation to her background was accepted. This included an age appropriate book she created about the relationship between her and Z, and how they were helped to have a baby by W. Y's evidence regarding how she has read it with X and made it available to her was compelling, and supported by the Guardian. The court was confident that Y would continue to support X in a sensitive and age appropriate way, and that if X said she wanted to meet or have contact with W, then Y would take the necessary steps in accordance with X's welfare needs.

3. Given W's position regarding the co-parenting relationship he considered the parties had entered into, and belief that Y had withdrawn from that arrangement, the court expressed its concern that if W had any time with X it was likely he would seek an increase in the time and his involvement in her life. This would put her current stability at risk.

4. W's "somewhat blinkered reliance on general rights" had meant he has been unable to engage with X's reality and the steps Y had been taking to assist her. Although he said he would follow professional advice, the court considered a real risk he would only follow it if he agreed with it.

5. Y's recovery from a mental health condition had been hampered by the continuation of these proceedings, and would be further impacted by an order for X to spend time with W. This would have a direct impact on X's welfare and the stability of care Y could provide to X.

The court concluded that a s.91(14) order would be made lasting until March 2026 (i.e. 6 months after X would move to school in September 2025, ensuring she had time to settle.) Annual indirect contact would continue, including exchanges of information and photographs to enable Y and Z to discuss W with X in accordance with her wishes and welfare needs.


Re C (A Child) (Parental Order & Child Arrangements Order) [2020] EWHC 2141

A highly unusual decision following a fact-finding hearing in which it was found that the mother had lied about the father's consent to a second surrogacy arrangement in which two twins had been born. The court determined the parties' parental order application in respect of the child born as a result of their first surrogacy arrangement, and made a child arrangements order that the child would live with his father, and have contact with his mother.

The mother (M) and father (F) had married in 2009. They entered into a surrogacy agreement abroad in 2017, and their now 2-year-old son (C) was born in 2018 as a result of this surrogacy arrangement.

The mother asked the surrogacy agency to continue storing F's sperm for a further five months. Soon afterwards, on 24 April 2018, M entered into another surrogacy agreement with the same surrogacy agency. On 25 October 2018 a second surrogacy agreement was signed with the proposed surrogate mother (a different surrogate mother from C), and the agency's lawyer signed the agreement on behalf of the parents using the power of attorney used for the first surrogacy agreement. An embryo was implanted on 10 December 2018 into the second surrogate mother, and M became aware that the surrogate mother had become pregnant on 26 December. The father alleged he was unaware of the second surrogacy agreement until 5 March 2019, and that he did not sign the second surrogacy agreement.

On 6 March 2019, M reported to the police that F had allegedly assaulted her on 3 February.

A Parental Order Reporting Officer had made three visits to the family in September and October 2018. On no occasion had the mother made any reference to a second surrogacy arrangement to the Officer, nor had the mother said anything at numerous directions hearings between October and March 2019.

In 2019, twins (P and Q) were born as a result of the second surrogacy. They remained living abroad with M or alternative carers until they arrived in this jurisdiction with M in 2020. (M originally planned to divide her time between caring for C and travelling to the country of their birth to care for the twins on a two-weekly cycle, however was not able to maintain the regularity of visits.) At the time of this hearing C had been in the sole care of F since 3 April 2020, and enjoyed weekly contact with M.

During a fact finding hearing earlier in the year, formally handed down on 17 April 2020, (see Re C (A Child) (Parental Order: Child Arrangements Order) [2020] EWHC 2474 (Fam)), Keehan J made the following findings of fact (summarised at §8 of the instant judgment):

i)  I was not satisfied that the father had signed the second surrogacy agreement and I found he did not;

ii)  The mother had serially lied in her evidence. I found no innocent explanation for these lies. She was, I found, a wholly unreliable witness who would tell lies with alacrity to achieve her objectives;

iii)  On 5th March 2019 the mother, for the first time, told the father of the second surrogacy. The father was shocked and surprised. Plainly his adverse reaction was not one the mother wanted to hear. She alleged he had threatened her on the afternoon and evening of 5th March which led her to contact the police;

iv)  It was not a case of happenchance or mere coincidence that the report to the police was made the day after she had told the father of the second surrogacy. Further, she stopped all contact between the father and C for three months;

v)  I did not believe the mother's account of the father threatening her on 5th March. I considered it most likely, and found, that the father's adverse reaction to the news of the second surrogacy so incensed and angered the mother that she sought to punish the father and/or exact revenge by:

a)  making a false allegation to the police that the father had assaulted her on 3rd February 2019; and

b)  stopping all contact between C and his father, for no good or child focussed reason whatsoever.

vi)  The mother deliberately concealed the second surrogacy from the father until 5th March 2019 when it was far too late for him to do anything about it – the surrogate mother's pregnancy being so far advanced;

vii)  The father did not consent to the extension of the period of storage of his genetic material by the surrogacy agency in X Country;

viii)  The father did not consent to the second surrogacy arrangement; and

ix)  The father was a measured, reliable and credible witness. I found that he had not assaulted the mother nor subjected her to domestic abuse as she alleged or at all.

The court had a number of applications before it at this instant hearing, and each was dealt with in turn, considering the requisite law separately.

The parties' joint application for a parental order in respect of C dated 12 July 2019 (§59-66)

The sole legal issue was in respect of whether HFEA 2008, s.54(4)(a) was satisfied given that at the time of the making of the order, the parents were separated and lived in two separate households. Keehan J held that de facto family life was established. In the past C lived with M and/or F and they provide him with all of his care needs and make important decisions in respect of his life. Further, whilst he now lived with F, he very regularly spent time every week with M.

The court concluded it was appropriate to read down the statutory criteria in order to meet the rights of the parents and C under the ECHR therefore. Giving a wide and purposive interpretation of "home", C had his home with both F and M in that he would be cared for by both of them, albeit not necessarily, and not at present, on the basis of an equal shared care arrangement. A parental order was made accordingly.

M's application to re-open the findings of fact dated 8 June 2020 (§67-79)

M sought to re-open the findings of fact, and invited the court to consider: F's knowledge of, consent to and participation in the second surrogacy arrangement, and the finding M had deliberately concealed the arrangement from him; F's alleged assault of M on 3 February 2019, and his abusive and controlling behaviour of her in the family home; and F's reliability as a witness of fact, and by extension, M's reliability.

The court extensively considered the law on re-opening findings of fact (§53).

Ultimately, the application was deemed totally without merit and dismissed; none of the evidence put forward by M materially advanced her case. It was noted that F had accepted he had lied in respect of an aspect of his evidence when he denied taking flowers for M, entering the house, having a meal with the maternal family and spending a number of hours with them on the evening of 24 January (i.e. after the fact-finding hearing had concluded). However, his explanation that he lied because of his shame when he had failed to reconcile with M was accepted and did not negate the finding as to his credibility.

The findings of fact sought by M against F including of financial, coercive and controlling abuse during the relationship (§80-82; 110)

None of the findings of fact sought by M against F were made.

F's application for a child arrangements order dated 22 March 2019 (§83-85; 96-106)

In determining F's application for a child arrangements order, the court concluded it was in C's best interests to continue to live with the F, and have contact with M twice per week (once direct contact for four hours, and once via indirect contact).

The court held M did not exhibit any understanding of the impact upon him of her proposed arrangement for C to live with her and the twins.

Keehan J noted M said she accepted the findings of fact made by the court in the 17 April 2020 judgment. However, despite this she has still maintained F assaulted her on 3 February 2019, and that F knew about the second surrogacy and consented to it. M has continued to criticise F and talk about him in negative terms, including in her evidence. The court found she has demonstrated she has not changed or wished to move forward with F. She was lying in her allegations against F. Moreover, she has been unable to accept the harm she has caused C by the second surrogacy; it took her away from C for a prolonged period of time while she was in another country looking after the twins and has caused an immensely complex set of family relationships that will have to be explained to C and the twins in due course.

The court found that if C lived with M the prospects of him enjoying a relationship with F were very poor. However, if he lived with F, he would be encouraged to have a positive relationship with the mother.

The Guardian's application for the instruction of an expert dated 20 April 2020 (§107; 112; 114)

Permission was given for an expert, Dr Pettle, to be instructed to advise the court on whether and, if so:

i. How C should learn of the existence of his two half siblings;

ii. How he should be introduced to them; and

iii. How their relationship should be enabled to be developed.

M's level of contact with C would be reviewed in light of Dr Pettle's advice and recommendations, and the court would then consider F's request to place restrictions on the exercise of M's parental responsibility. 


9/12/20