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Thursday, May 14, 2015

Calls made for ‘properly regulated’ framework for surrogacy agreements

High Court dispute underlines distress caused by informal agreements

In H v S (Surrogacy Agreement) [2015] EWGC 36, Ms Justice Russell has had to determine arrangements which best served the interests and welfare of a child who had been conceived following an agreement whose terms were bitterly disputed.

Ms Justice Russell said:

"Very sadly this case is another example of how 'agreements' between potential parents reached privately to conceive children to build a family go wrong and cause great distress to the biological parents and their spouses or partners. The conclusions this court has made about the agreement between the parties which led to the conception and birth of this child will inform the basis of future decisions the court has to make about the arrangements for the child. The lack of a properly supported and regulated framework for arrangements of this kind has, inevitably, lead to an increase in these cases before the Family Court."

The case concerned cross-applications for a residence order and contact order (as they were then referred to) in respect of the child, M. The applicants were, H and B, M's father and his partner respectively, and the respondent was the child's mother, S. M was a party to the proceedings.

S and H were Romanian nationals, although H was of Hungarian extraction. B was a Hungarian national. M, described as a child of mixed heritage, had been conceived by artificial or assisted conception through an agreement between H and S. The basis of the agreement was highly contested as S argued that H agreed to act as a sperm donor. H and B contended that S had offered and agreed to act as surrogate mother to enable them to have a family. In this respect the main issue before the court was whether H and B had agreed with S that they would be M's main carers and take on the role of parents; or whether, as S contended, she and H decided to parent a child together, and that B was to play no part other than as the child's father's "boyfriend".

Through their application H and B sought that M live with them and spend time with her mother twice a week. S sought an order for M to live with her. Her initial position had been that overnight contact to H and B should be determined once M, who was 15 months old at the time of the hearing, stopped breast-finding. At the final hearing, and following her failure to obtain permission to appeal an existing order for overnight contact, she agreed to overnight contact proceeding as previously ordered. M's Guardian recommended that M lived with H and B, and spends time with her mother once a month under supervision. The Guardian was concerned about S's ability to promote in the short-term and in the longer term a positive and healthy relationship between M and H and B.

Following the Court of Appeal's guidance in Re N (A Child) [2007] EWCA Civ 1053, Russell J proceeded to determine the basis of the parties' agreement leading to M's conception; the determination being crucial to the judicial task as it informed the review of the medium and long-term future of the child. However, the function of the court was not to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It was the function of the court to decide what best serves the interests and welfare of the child throughout her childhood.

Russell J stated that to describe the arrangement of the parties as a failed surrogacy agreement was not quite accurate, as H and B had always contemplated that S would play a role in M's life. In reaching her conclusions, Her Ladyship considered a number of emails between the parties and heard their oral evidence. She concluded that the mother made allegations unsupported by the evidence, and which reflected her deliberate attempt to discredit H and B in a homophobic and offensive manner. The mother was found not to be a credible witness, and contrary to her assertions that she had been victimised she conducted herself in a very confident and most assertive manner throughout. The mother's claim that the father was a sperm donor was at odds with the tone of her own emails to him. Further, Russell J found that it was inconceivable that B was not aware of, and party to, the discussions leading to M's conception as the mother claimed.

Applying the welfare checklist, Ms Justice Russell weighed the fact that M had spent most of her life with her mother and would miss her if taken from her care, against the  risk of harm to her if she remains in her mother's care. The effect on M's identity of the mother's negative views and her sense of self and where she belongs; the mother's likely inability to assist M in understanding the history behind her conception and the mother's inability to put the needs of M above hers were among the factors considered by the Judge in reaching her decision. In contrast, the father was said to have a child-centred approach.

On the basis of the evidence, Her Ladyship concluded that the father was the parent best able to meet the child's needs now and in the future. Whilst recognising that supervision of the time spent with her mother will represent a serious and substantial change, the Judge found that it was necessary to reduce conflict and enhance the prospect of contact being a positive experience for M.

The case has caused commentators to call for a proper framework for such arrangements.

Peter Morris, a partner at Irwin Mitchell, said:

"The key issue raised by this case is that the UK lacks a clear, comprehensive legal framework to cover the concept of surrogacy.

"A number of countries including the US have a proper process that those involved in surrogacy must undertake. Such systems would see all of those involved make a clear agreement regarding the future of the child and who will care for them, as well as in some instances have psychological screening. The process is legally regulated which provides greater certainty for the surrogate, the intended parents and ultimately the child.

"The UK however does not have such an approach in place, meaning that although the vast majority of surrogacy arrangements conclude amicably, if a surrogate mother was to change her mind the only recourse for the other parties involved would be to head to the courts.

"Considering how emotionally draining and time-consuming a legal battle of this nature can prove to be, this case perhaps indicates that the time is now right for the current legislation in this area to be reviewed."

For the judgment and a more detailed summary, from which this item is derived,  by Katy Chokowry of 1 King's Bench Walk.


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