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Monday, June 29, 2015

Surrogacy Law Update (June 2015)

This update will deal with four cases that have furthered the ever growing debate concerning the law related to surrogacy. The cases handed down continue to generate public and media interest, as well as discussion amongst legal commentators.

Single intended parents
One of the frequently asked questions is what the legal position is in relation to single intended parents.  Whilst the amendments to the HFEA 2008 have widened the availability of parental orders to cohabitating couples (couples in a long and enduring relationship), same-sex couples, as well as married couples (s54(2)) as  provided for in the original 1990 Act, those amendments have fallen short of extending the availability of parental orders to single intended parents. The parallel that is often drawn is that if single persons are able to adopt, so too should they be able to have a child through surrogacy and obtain appropriate legal orders that afford them parental rights.

This issue came before the court in B v C (Surrogacy – Adoption) [2015[ EWFC 17, in which Theis J dealt with the first reported case of its kind, concerning a single intended father who had had a child through a surrogacy arrangement where his mother was the gestational surrogate. All of the parties concerned had been through individual counselling and the treatment itself was undertaken at a licensed fertility clinic. At the time of the child's birth the child's legal parents were the gestational surrogate and her husband.

Dealing with the relevant legal framework, Theis J sets out the provisions of the HFEA that affords legal parentage to the gestational surrogate  s33(1) and her husband s 35(1). Plainly the provisions of s54(2) prevent the intended father from being able to apply for a parental order.  However, the court was satisfied that under the provisions of the Adoption and Children Act 2002 it was lawful and in the child's best interests that an adoption order was made.

An interesting feature of the case was that since the intended father was treated in law as a relative of the child (i.e. his legal brother),  no criminal offence was committed in the child being placed for adoption with his intended father. Section 92 of the Adoption and Children Act 2002 states:

"(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).

(2) The steps are—

(a) asking a person other than an adoption agency to provide a child for adoption,

(b) asking a person other than an adoption agency to provide prospective adopters for a child,

(c) offering to find a child for adoption,

(d) offering a child for adoption to a person other than an adoption agency,

(e) handing over a child to any person other than an adoption agency with a view to the child's adoption by that or another person,

(f) receiving a child handed over to him in contravention of paragraph (e),

(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).

(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.

(4) The condition is that—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is the partner of a parent of the child."

Breach of s92 is a criminal offence under s93 of the Adoption and Children Act 2002.  As Theis J observed:

"32. What this case highlights, is that but for the close familial relationship between B and C, their actions would have breached these important statutory provisions and potentially left them liable to a criminal prosecution under both s.93 ACA 2002 and s.70 CA 1989.

33. It is therefore imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice as to how to proceed as adoption is the only means to ensure that they are the only legal parents of their child. The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child."

Arguably this case is yet another example of the lack of legislative provision regarding surrogacy law in the UK. The reality in a case such as this is that the science and the medical  technology are available to enable a single individual to embark upon a surrogacy arrangement without even  leaving the jurisdiction, so it must follow that there should be the appropriate legal framework without having to adopt. In this case, but for the familial relationship between the intended father and the child, it would have been difficult for the intended father to obtain an order that would offer the same degree of permanence as adoption or parental orders do.

Save for statutory reform or a Re X style 'reading down' of s54 of the HFEA the alternative option would be s8 Children Act 1989 orders for the child to live with the single intended parent and prohibitions on the surrogate mother's exercise of parental responsibility, vesting exclusive exercise of parental responsibility in the single intended parent, akin to the approach adopted by Eleanor King J (as she then was) in JP v LP & Others [2014] EWHC 595 (Fam). Of course, the distinction between the approach adopted in JP v LP arose in difference circumstances and did not concern a single parent.

Service, consent and payments
In R and S v T (Surrogacy: Service, Consent and Payments) [2015] EWFC 22, the application for parental orders concerned twin boys aged 18 months following a commercial surrogacy arrangement in the Ukraine.

Section 54 provides that the surrogate mother should have 'freely, and with full understanding of what is involved, agreed unconditionally to the making of the order' and that consent should be given more than six weeks after the birth of the child (s 54 (6) and (7)). The applicants relied upon a document signed by the surrogate mother over six weeks after the twins' birth. The document confirmed that the  applicants were the biological parents (the intended father was the biological  parent  of the children); the applicants had been registered as the children's parents in the Ukraine; the surrogate had no parental rights to exercise over the children; all parental rights concerning the children had been vested in the applicants; the surrogate consented to the children being removed from Ukraine;  and she consented to the children being 'naturalised in Great Britain'. The document was witnessed by a notary who was able to verify the  signature.  A further document, signed by the surrogate, purported to be the surrogate's agreement to the making of a parental order.

The court had to consider whether the evidence as to consent satisfied the requirements under s54(6) i.e. that the surrogate had given consent with 'full understanding'. Whilst there was evidence that the documents were indicative of consent,  the court found that it could not be satisfied that the surrogate had 'freely, and with full understanding of what is involved, agreed unconditionally to the making of a parental order' as required by s 54(6).

In those circumstances the court went on to consider whether  it could be said that the surrogate mother could not be found under s54(7) and whether the applicants had taken reasonable steps to locate her.  Theis J concluded that the applicants had taken all reasonable steps  to locate the surrogate and that the court could therefore dispense with her consent.

In respect of payments, the difficulty that arose was that there was no clear evidence as to how much the clinic had paid the surrogate, and the clinic concerned  had refused to provide information. There was also the issue that the surrogate could not be found.  The only document available to the applicants suggested that the surrogate received the equivalent of  EUR 200.00 per month (i.e. EUR 1800 in total), which equated to significantly higher than the average monthly salary in the Ukraine. Applying the well established principles from X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) the court was satisfied that the applicants had acted in good faith and had not acted in a way to get around the authorities.

The court went on to make  parental orders, however,  as Theis J observed in her judgment, the case serves as yet another salutary reminder of the importance of intended parents seeking specialist legal advice before embarking on surrogacy as a route to parenthood.

Surrogacy agreements
Surrogacy agreements are unenforceable in the UK. So what happens when there is a disagreement about where the child should live? In H v S (Surrogacy Agreement) [2015] EWFC 36, Russell J had to deal with cross applications for section 8 orders concerning a child conceived as a result of an agreement between the birth mother and the father and his same-sex partner.

The legal issue at the crux of this case was the living arrangements for the child, which was ultimately a welfare decision.  Russell J observed:

"7. I have been referred to numerous cases including that of Re N (A Child) [2007] EWCA Civ 1053, a case which has similar facts to this one, in which the Court of Appeal endorsed the following approach as an impeccable statement of the issues the trial judge had had to decide:

'…the test here is…as between the two competing residential care regimes on offer from the two parents (with their respective spouses) and available for his upbringing which, after considering all aspects of the two options, is the one most likely to deliver the best outcome for him over the course of his childhood and in the end be most beneficial. Put very simply, in which home is he most likely to mature into a happy and balanced adult and to achieve his fullest potential as a human?' (emphasis added)

The court heard evidence over a 5 day period and found, inter alia, that the mother had "..deliberately misled the Applicants in order to conceive a child for herself rather than changing her mind at a later date."

Saliently, Russell J concluded:

"125. It is not the function of this court to decide on the nature of the agreement between H, B and S and then either enforce it or put it in place. It is the function of the court to decide what best serves the interests and welfare of this child throughout her childhood. It is, however, a fact that M was not conceived by two people in a sexual relationship. The pregnancy was contrived with the aim of a same-sex couple having a child to form a family assisted by a friend, this was ostensibly acquiesced to by all parties at the time the agreement was entered into and conception took place. Therefore M living with H and B and spending time with S from time to time fortunately coincides with the reality of her conception and accords with M's identity and place within her family."

The implications of this case highlight that whilst there was much media interest in the case, it was essentially a case based on welfare.

Human Fertilisation and Embryology Authority
Away from the Family Court, in The Queen (on the application of IM and MM) v Human Fertilisation and Embryology Authority [2015] EWHC 1706 (Admin) the Administrative Court was concerned with a judicial review regarding a decision not to allow frozen eggs from a deceased woman to be exported to the USA to be then used  by her surviving mother. The claimants in the judicial review, the deceased woman's parents,  had identified an American clinic which was able to offer treatment using an anonymous sperm donor. The HFEA in 2014 had decided that there was inadequate evidence that demonstrated that the deceased woman wanted her eggs to be used in the way her parents had sought.

Whilst the deceased daughter had given consent for her eggs to be stored for use after her death, she had not completed separate forms outlining how they were to be used.

Ouseley J dismissed the claimants' claim.

Whilst this case is a unique case on its facts, it does raise the issue not only of how embryos and gametes should be stored, but what should happen to them in certain circumstances.  It is likely that similar cases will arise in the future as increasingly more people use assisted reproductive technologies (ART) as a route to parenthood.

What should happen, for example, on the separation of a couple who have embryos stored? I recently attended an American Bar Association in California where these issues were being discussed.

One session in particular that stood out, entitled "What to do when it's ova", had the assistance of an eminent psychologist who emphasised the importance of counselling for couples embarking on ART as a route to parenthood before they even meet a doctor or lawyer.

The general theme appeared to be "prevention is better than cure" and that it is important for couples to know where they stand in the event of relationship breakdown  - e.g. who gets to keep the sperm, eggs, embryos and what use may be had of them? (all questions that are being frequently asked on divorce questionnaires where there is no prior agreement)  The Americans like to describe this as "front loading conversations". What emerged repeatedly in this seminar from lawyers from all over America was the practice of fertility clinics misinforming would-be parents of their legal rights and their legal positions generally, leading to an inevitable legal car crash when things do not go as expected.

The use of contract law as a paradigm for resolving sensitive and profoundly human disputes such as embryo ownership post breakdown seems, to the English lawyer, the quintessential American dispute straight out of an episode of 'The Good Wife'. However, only recently this month a Chicago appeals court ruled 2-1 that a woman whose fertility was destroyed by cancer treatment could use embryos she created with her former partner, despite his objections. Of course, there have been a few prominent cases in this jurisdiction dealing with similar issues (e.g. Evans v. the United Kingdom  - Application no. 6339/05) – 10 April 2007); however, the prevalence of these cases in America is, unsurprisingly, much greater.

In short, the message from psychologists and counsellors is that conflict is less likely where the parents have thought about the process with an independent professional. In some cases where couples have undergone counselling, it is not unheard of for the psychologist or counsellor to recommend against the couple embarking on the process (e.g. instability in the relationship or differing views on what should happen in the event of the parties separating).

As ever, the recent string of cases all highlight that where children are born through surrogacy arrangements, their welfare will always be the court's paramount concern. It is estimated that there are as many as 2,000 children a year born through surrogacy arrangements (mostly overseas) to British parents; however CAFCASS report that only 241 applications were made for parental orders last year. The number of people applying for parental orders has increased dramatically since the amendments to the HFEA 2008. Nevertheless, as Theis J observed speaking extra-judicially at the International Academy of Matrimonial Lawyers Surrogacy Symposium in London last month, the real concern is where people do not make applications. The difficulties that may ensue when parents are not legally recognised, for example, testamentary issues when parents separate, is something which the courts may have to deal with in the future.


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