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Saturday, March 7, 2015

Pitfalls for Single Parents in Surrogacy

Anne-Marie Hutchinson OBE, Partner, and Colin Rogerson, Solicitor Advocate, both of Dawson Cornwell, consider the options for single parents seeking legal parentage of children born through a surrogacy arrangement.

Parental Orders were first introduced by section 30 of the Human Fertilisation and Embryology Act 1990.  When section 54 of the Human Fertilisation and Embryology Act 2008 came into effect in April 2010, the law remained largely unchanged with the notable widening of the scope of potential applicants under the 2008 Act. 

Section 30(2) of the 1990 Act required the applicants in a parental order application to be "husband and wife."  Section 54(2) of the 2008 Act provides that:

"(2) The applicants must be –

(a) husband and wife;

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family type relationship and are not within prohibited degrees of separation of each other."

Section 54(2) of the 2008 Act excludes single commissioning parents from applying for parental orders.  That is in contradistinction to the position in adoption where a single applicant can apply for an adoption order pursuant to section 51 of the Adoption and Children Act 2002. 

Similarly, if a single woman conceives by donor sperm donated through a clinic licensed by the HFEA, the donor is not treated in law as the father of the child (HFEA 2008 s.41(1)) and the child has one legal parent.

Consequently, English law permits:

a single woman to become the sole legal parent via the HFEA 2008;
a single parent to adopt (whether a man or woman); and
a couple to acquire legal parentage through a parental order (if they are married, in a civil partnership or in an enduring family relationship).
In these circumstances it is difficult to understand what justifications or policy considerations exist to prevent a single applicant from applying for a parental order.

Notwithstanding the prohibition on parental order applications by single parents, there is nothing to stop a single commissioning parent from entering into a surrogacy arrangement either in this jurisdiction or overseas. 

It is crucial for all commissioning parents, whether single or otherwise, to take legal advice before they embark upon a surrogacy arrangement. 

Adoption as a means to secure legal parentage
In A and A v P, P and B [2011] EWHC 1738 (Fam) Theis J observed that "the effect of a parental order is the same as an adoption order." (paragraph 30(4)).  More recently in AB v CD (Surrogacy: Time Limit and Consent) [2015] EWFC 12 Theis J resiled somewhat:

"[71] I agree a parental order and the consequences that flow from it are, from a welfare perspective, far more suited to surrogacy situations. They were specifically created to deal with these situations. Put simply, they are a more honest order which reflects the reality of what was intended, the lineage connection that already exists and more accurately reflects the child's identity. An adoption order in these situations leaves open the risk of a fiction regarding identity that may need to be resolved by the child later in life. The effect of an adoption order according to s 67 (1) ACA 2002 of treating the child 'as if' the child is born as a child of the adopter or adopters is not the reality; the child is born with a biological connection to one of the applicants. However, there may be circumstances where a parental order is not an option, for example where the biological parent is single."

In B v C (Surrogacy: Adoption) [2015] EWFC 17 (Fam), Theis J considered an application for an adoption order made by B, who was a single father of the child, A.  B's sperm and a donor egg had been implanted into C (who was in fact B's mother).  C was married to D (B's father).  By operation of HFEA 2008 s.31, C was the legal mother of A and her husband, D was A's legal father by virtue of HFEA 2008 s.35(1).  Accordingly B was not recognised as a legal parent and sought to establish legal parenthood (and to extinguish the parentage between A and C and D).

B's application for an adoption order was supported by all of the parties, including A's Guardian and the local authority.  This was an unusual case and the court analysed the relevant provisions of the Adoption and Children Act 2002, including possible criminal liability in respect of a breach of s.92 ACA 2002 (which effectively creates a criminal offence under s.93 ACA 2002 for private adoptions without using an adoption agency).  In this case, a criminal offence had not been committed because of s.92(3) and (4) which provides that an offence is not committed if the prospective adopters are parents, relatives or guardians of the child, or a partner of a parent of the child.  Given that as a matter of law, B was in fact the legal brother of A, the court found that B was a "relative" within the meaning of s.144 ACA 2002.

B v C [2015] EWFC 17 (Fam) highlights the complexities that arise when adoption is used in the context of a surrogacy arrangement.  But for the commissioning parent's familial relationship with his surrogate, it is likely that B, C and D would have all been guilty of offences under the ACA 2002. 
It should also be noted that B v C [2015] EWFC 17 (Fam) was a domestic altruistic surrogacy arrangement.  There are many children born as a result of commercial surrogacy (where surrogates have been paid sums of money in excess of reasonable expenses) to either surrogates in this jurisdiction or overseas.  Applying for adoption orders in this context could have even more serious implications for the parties involved in the process.

International surrogacy issues
Where a child is born through an international surrogacy arrangement, their place of birth is likely to be in the country of the surrogate mother.  In order to bring the child back to this jurisdiction, the commissioning parents need to obtain travel documents or visas prior to travel.  In the context of a surrogacy arrangement with a single commissioning parent, if they intend to apply to adopt their child, they face criminal liability under ACA 2002 s.83(1)(a) which provides that it is a criminal offence to "bring, or cause another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption of by the British resident."  

Commercial surrogacy issues – whether domestic or international
Nearly all international surrogacy arrangements and most domestic surrogacy arrangements will have a commercial element to them, in that the surrogate receives a payment that amounts to a fee for carrying the child for the commissioning parents.  In the context of a parental order application, HFEA 2008 s.54(8) provides that the court can retrospectively authorise the payments made by the applicants and there is a well-established line of authorities whereby the English courts authorise such payments.  Within the context of adoption, ACA 2002 s.95 prohibits payments other than an 'excepted payment' which is made for or in consideration of the adoption of a child.  ACA 2002 s.96 sets out what payments are considered to be 'excepted payments' as payments:

i. made to a registered adoption society in respect of expenses reasonably incurred by the society in connection with the adoption;

ii. legal or medical expenses incurred;

iii. in the context of an international adoption, payments that relate to travel and accommodation reasonably incurred in removing the child from the United Kingdom for the purpose of adoption.

Thus in most commercial surrogacy cases, the question of criminal liability under ACA 2002 s.95 will arise.  

What needs to be done?
It remains to be seen whether it will be argued that the prohibition on single parent applicants is not compatible with the ECHR – particularly if the application is made by a single commissioning mother who is able to use her own eggs but is not able to carry the child.  By virtue of HFEA 2008 s.31 a single commissioning mother will never be recognised as a legal parent because the surrogate would always be recognised as the legal parent.  On the other hand, single commissioning fathers might still be considered a legal parent if there is no second parent by virtue of HFEA 2008 ss.35 or 42.

Using adoption to secure legal parentage is not without its difficulties and practitioners should be careful to ensure that they do not advise single commissioning parent clients to embark upon a process of adoption if their clients are at risk of inadvertently committing a criminal offence contrary to the Adoption and Children Act 2002.

Hopefully Parliament will consider amending the statutory criteria for a parental order to allow single commissioning parents to apply for a parental order.  Until then the position for single commissioning parents, surrogates and most importantly the children born through such arrangements will remain uncertain. 


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