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Parental Orders in Cases of International Surrogacy: Practical Considerations

Gwynneth Knowles QC of Atlantic Chambers, Liverpool, provides a guide through the legal difficulties often created by international surrogacy arrangements.

Gwynneth Knowles QC, Atlantic Chambers, Liverpool

Gwynneth Knowles QC, Atlantic Chambers, Liverpool

Infertile and/or gay couples are increasingly looking abroad and taking advantage of developments in reproductive medicine in order to create a family of their own.  New fertility techniques have led to what can only be described as a boom in gestational surrogacy.  Gestational surrogacy creates an embryo with an egg or sperm from the commissioning parents (or from a donor egg and/or sperm) and this embryo is then transferred into the uterus of a genetically unrelated surrogate.  This form of surrogacy offers infertile or gay couples the chance to have a child to whom at least one of them is biologically connected.

However a combination of the high costs of such surrogacy in the UK, the extremely limited number of willing surrogates, and the legal restrictions on commercial surrogacy in the UK has helped to create a global market in international surrogacy worth, on one recent estimate, about six billion dollars annually. Unlike international adoption, which is subject to strict regulation both in the United Kingdom and abroad, international surrogacy is entirely unregulated at an international level.  Certain countries such as India and the Ukraine promote themselves as destinations for gestational surrogacy by providing good quality low cost medical care and by giving legal protection to commissioning parents.

English law is not so accommodating and couples face formidable obstacles in being recognized as the legal parents of a child born abroad via gestational surrogacy.  This article will examine some of those obstacles with reference to the, as yet, limited case law on this issue and will make some practical suggestions for those involved in this kind of litigation. All references to legislation are to the Human Fertilisation and Embryology Act 2008 (HFEA) unless otherwise stated.

Parenthood: English Law
In cases of gestational surrogacy, the woman who gives birth to a child is regarded in English law as the child's mother even if she is biologically unrelated to the child (s.33). If she is married, her husband is to be treated as the child's father unless it can be shown that he did not consent to the surrogacy arrangement.

However commissioning couples can apply under s.54 for a parental order which extinguishes the presumed parenthood provisions and transfers parental responsibility for the child to the commissioning couple.  Section 54 contains a number of provisions which must be satisfied before a parental order can be made: fulfilling these provisions can create enormous problems.  Equally the actual process of applying for a parental order, which is governed by Part 13 of the Family Procedure Rules 2010, can also throw up unexpected, costly practical problems.

With effect from 6 April 2010, the HFEA (Parental Orders) Regulations 2010 applied s.1 of the Adoption and Children Act 2002 to all applications for parental orders.  This means that the child's welfare throughout its life is now the court's paramount consideration when considering whether or not to make a parental order.  Though this refinement to the Act has undoubtedly given the court some flexibility in order to overcome some of the problems thrown up in this complex area of law, it may not come to the rescue in every difficult case.

Biological Connection: Section 54(1)
A parental order may only be made with respect to a child if that child is genetically connected to at least one of the applicants.  It is thus necessary for the court to have some evidence that this is indeed the case: a DNA test result together with documentation from the fertility clinic clarifying, for example, that either the sperm or the egg (or both) belonging to one (or both) of the commissioning couple was used to create the embryo.

Status of the Applicants: Section 54(2), (4) and (5)
Both applicants must be over the age of 18 when the order is made and be husband and wife or civil partners or two persons living as partners in an enduring family relationship who are not within prohibited degrees of relationship to each other.  When both the application and the order are made, the child's home must be with the applicants.

In most cases these status provisions will be easy to satisfy and evidence.  In the case of Re A and Another v P and Others [2011] EWHC 1738 (Fam), Theis J made a parental order in a case where the commissioning father had died after the parental order application was made but before the final hearing of that application. Whether the court would be able to interpret these status provisions so positively in cases where the commissioning parents have separated or divorced prior to a final hearing or before an application has been made remains to be seen.  The effect of s.54(2) which excludes an application by a single person would appear to prevent one commissioning parent applying for or obtaining a parental order even if they were biologically connected to the child.

Timescale: Section 54(3)
An application for a parental order must be made within 6 months of the child's birth.  Hedley J in Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 Fam, [2009] 1 FLR 733 noted that there is no power to extend the time limit and that this may cause problems where immigration issues have led to delay.  In the case of Re K (Minors: Foreign Surrogacy) [2010] EWHC 1180 (Fam), [2011] 1 FLR 533 the application had been made even though the children had not been granted entry clearance to the UK.  Hedley J was not satisfied that, in those circumstances, he had jurisdiction over the children but did not dismiss the application there and then.  It would seem prudent in cases where there may be problems with the child's entry into the UK for couples to issue their application whether or not the child concerned is actually in the jurisdiction and then to invite the court to adjourn pending a decision on entry by the UK Border Agency.

Domicile: Section 54(4)
Both at the time of the application and at the making of the order, either or both of the applicants must be domiciled in the UK or the Channel Islands or the Isle of Man.  Domicile was considered by Theis J in Z v C (Parental Order: Domicile) [2011] EWHC 3181 (Fam) who described it as one of the mandatory requirements giving the court the jurisdiction to make a parental order.  The commissioning parents were two Israeli nationals who moved to the UK in 2008 in what was designed to be a permanent relocation.  They had twins born in November 2010 who were conceived as a result of a gestational surrogacy arrangement in India.  It appears that the applicants were wrongly advised by both the surrogacy agency in Israel and by the UK Border Agency that the children should make their application for entry to the UK from their country of nationality rather than from the country of their birth.  The applicants did as they were advised but the children were refused entry clearance to the UK.  An appeal to the Immigration Tribunal was successful but the Secretary of State challenged this decision in the Upper Tribunal.  His appeal was rejected and entry clearance for one year was permitted to the twins but the issue of whether the applicants fulfilled the domicile requirement under the Act remained in doubt.  Theis J ruled that, on detailed examination of the facts, one of the applicants was domiciled here from the time he arrived in 2008 and that the court thus had the jurisdiction to make the parental order.

This case highlights above all the need, before the child's birth, for commissioning couples to obtain good quality immigration advice from a specialist solicitor.  This is particularly important for couples who do not have UK nationality and who have been resident in the UK for a comparatively short period of time prior to the child's birth.  In the case of Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [2008] 1 FLR 1047 the applicants were Turkish nationals who were not domiciled in the UK and whose child had been born via a surrogacy arrangement in the UK.  The court was unable to make a parental order as the domicile requirement had not been satisfied and instead gave the applicants an order for parental responsibility under s.84 of the Adoption and Children Act 2002 so that they could adopt the child in Turkey. This solution may not be available in every problematic case.

Consent: Section 54(6) and (7)
The court must be satisfied that both the woman who carried the child and, if she is married, her husband, have freely and with a full understanding of what is involved agreed unconditionally to the making of the order.  Such agreement is ineffective if given by her less than six weeks after the child's birth.  The court has the power to dispense with the agreement of the surrogate and/or her husband if those persons cannot be found or are incapable of giving their agreement.

Significant problems in obtaining the necessary agreements can arise as agreements which are valid in India or in the Ukraine for example will almost certainly be invalid in this country.  In Re X and Y (Children) [2011] EWHC 3147 (Fam) apparent agreements were signed in India after the children were born. However agreement on the appropriate court form had to be obtained by the applicants and this was done prior to the making of parental orders.  Additionally estranged husbands of surrogates can create problems.  In Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam), [2008] 1 FLR 1047 the surrogate's estranged husband was the child's legal father as there was no evidence that he had not consented to her treatment.  His unwillingness to reply to any correspondence meant it was impossible to gain his agreement to a parental order.  McFarlane J commented that, where a prospective surrogate is a married woman who has separated from her husband, all reasonable steps should be made before the surrogacy process begins to establish that the husband does not consent to the proposed surrogacy arrangement.

Thus, satisfying the agreement test requires:

a) agreement at the right time;
b) agreement from those to whom English law gives parental responsibility;
c) agreement to be in the form prescribed by the Family Procedure Rules 2010 namely as in Form A101A (Practice Direction 5A); and
d) such agreement, if executed outside the UK, to be witnessed in accordance with the requirements of Rule 13:11(4) of the Family Procedure Rules 2010, for example by a notary public or by a British Consular official.

It is imperative that the commissioning parents have reliable contact addresses for the surrogate and/or her husband or that the surrogacy clinic abroad has these and can facilitate the obtaining of agreement in the correct form.  Should such efforts fail, a detailed statement of facts setting out the history and the efforts made to obtain agreement must be filed with the court (Family Procedure Rules 2010 Rule 13.10(2)(b)).

Payments: Section 54(8)
Unless authorized by the court, no money or other benefit (other than for reasonably incurred expenses) should have been given or received by either of the applicants for or in consideration of (i) the making of the order, (ii) any consents/agreement required by s.54(6), (iii) the handing over of the child to the applicants, and (iv) the making of arrangements with a view to the making of the order.  The court has the power to authorize payments in excess of reasonable expenses retrospectively.

The provisions of s.54(8) have preoccupied courts due to the tension between sanctioning payments for what is in effect commercial surrogacy (something not permitted under English law) and the reality that, if this is not done, the child concerned will almost inevitably suffer as he may have no carer in the jurisdiction with parental responsibility for him. The tension has eased with the importation of the s.1 welfare test from the Adoption and Children Act 2002 into the court's deliberation on both whether to make a parental order and on whether to authorize excess payment.  Nevertheless Hedley J emphasized in Re L (A Minor) [2010] EWHC 3146 (Fam), [2011] 1 FLR 1423 that the court should continue carefully to scrutinize applications for retrospective authorization under s.54(8) in order to ensure that the applicants were not effectively buying a child overseas.

In reality, as Hedley J himself acknowledged in Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733, it is difficult to imagine a set of circumstances in which, where the child's welfare demands it, the court would refuse to make a parental order no matter what sums were paid to the surrogate or to the clinic.  The case of Re X and Y (Children) [2011] EWHC 3147 (Fam) provides an example of the types of payment made in an Indian surrogacy case and also of the confusion which may arise when applicants have to seek clarification months after the event from the surrogacy clinic about the sums of money actually spent.  In that case it was unclear what the surrogates actually received and what the monies paid to them actually covered.

Commissioning couples should be advised to obtain a detailed breakdown from the clinic not only of its costs but also – since clinics usually handle this aspect as well – a breakdown of precisely what monies are paid to the surrogate and what those monies are for.  A statement from the surrogate confirming those monies have been received by her is also an important piece of the payments jigsaw.

Family Procedure Rules 2010: Part 13
The requirements in the Rules are strict because of the transformative effect of a parental order on the legal relationship between the child and the applicants, very much akin to the making of an adoption order.  Compliance is time-consuming and costly and relies above all on continuing contact with the surrogate and probably the surrogacy clinic.  This may be difficult to achieve in practice.  What follows is a signpost to some obvious but often overlooked issues.

The Rules contain traps for the unwary such as the requirement to serve the application on the surrogate and, if relevant, her husband (Rules 13.3 and 13.6).  This means proper translation of these documents and an address to send them to – the requirements of service outside the jurisdiction in Rule 6 and Practice Direction 6B must also be carefully observed.

Reference has already been made to the form of agreement/consent and how that should be executed.  Again translation and possibly court-approved amendment of Form A101A may be required especially if retrospective authorisation of payments is likely to be an issue.

Judges in the Family Division have sought to emphasise the legal difficulties that international surrogacy arrangements can create and the need for commissioning couples to take advice from those skilled in this area as to the problems that may arise and how they can be addressed.  Wider public interest in and publicity about international surrogacy may go a little way towards highlighting the need for specialist advice but is more likely to encourage the increasing number of couples travelling abroad for what some authors have accurately but heartlessly described as "reproductive tourism".

If this article has one message, it is for commissioning couples to get specialist legal advice before travelling abroad for treatment – negotiating the legal and immigration pitfalls once the child is born is a receipe for heartache, expense and delay.

16 May 2012