Charlotte Ash recently appeared before Mrs Justice Knowles on an application pursuant to Section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA”).
Charlotte, on the instruction from Jonathan Petch at Thompson & Jackson Solicitors, recently represented a couple in securing parental orders for their children who had been conceived by way of gestational surrogacy 13 years after the children’s birth.
When does the Act apply?
Where children are conceived by surrogacy (whether straight or gestational surrogacy), the surrogate remains the legal parent (and the surrogate’s husband, if married) of the child, unless a parental order is made.
A parental order is a fundamental legal order in relation to personal status, being even more far reaching than an adoption order. The authority of AB v CD [2015] EWFC 12 para 70 explains the fundamental difference between adoption and a parental order.
Section 54 of the HFEA has a number of factors the court has to consider before such an order can be made. The relevance of each factor will depend on facts of each case, as some may be more significant than the others.
Section 54 (1) and (2) sets out the premise of who can seek a parental order (two applicants; if the child was carried by someone other than the applicants by way of placing in her of an embryo or sperm and eggs; the gametes of at least one of the applicants to bring about the creation of the embryo and the applicants must be married, civil partners and/or in an enduring relationship).
Section 54 (5) states any applicants must be over the age 18.
Section 54 (3) provides that any application must be bought within 6 months of the child’s birth.
Re X, Y and Z (Children – Parental orders- time limit) [2002] EWHC 198 (Fam) Mrs Justice Knowles applied Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135, Munby P (President as he then was) that the time limit was discretionary.
Re X, Y and Z held that the time limit should not be applied as a straitjacket to prevent the court making orders that were plainly in the children’s best interests.
Section 54 (4) states that the child’s home must be with the applicants and either or both must be domicile in the UK.
Domicile is often a relevant consideration, and the court will need to consider the factors set out in Dicey & Morris (15th Edition) when determining domicile.
Section 54 (6) provides the surrogate (and her husband) have to consent of the making of parental orders more than 6 weeks post birth.
The issue of consent as set out in Section 54(6) underpins the foundation of the legislative framework.
The court must be satisfied that both the surrogate, and her husband must consent freely and with the full understanding of what is involved.
However, Section 54 (7) provides that Section 54 (6) does not require the consent of a person who cannot be found or is incapable of giving agreement. As such, the court can dispense with the surrogate and her husband’s consent in certain situations.
As noted in Re C (Surrogacy: Consent) [2023] EWCA Civ 16, Re Z (Surrogacy Agreement) (Child Arrangements Order) [2016] EWFC 33 and Re H (A Child) [2017] EWCA Civ 1978 the lack of consent by a surrogate can lead to an application for a parental order being refused.
If consent was not obtained post-birth obtaining consent where surrogacy has been undertaken outside of the jurisdiction can often add additional complexities not just in terms of being able to locate the surrogate and/or her husband after a passage of time, but there may be risks associated to the surrogate in trying to identify her or her husband’s whereabouts
Re D and L (Surrogacy) [2012] EWHC 2631 Fam [paragraphs 28-30]. Baker J (as he then was) sets three factors which need to be considered before dispensing with consent:
“First, when it is said that the woman who gave birth to the child cannot be found, the court must carefully scrutinise the evidence as to the efforts which have been taken to find her. It is only when all reasonable steps have been taken to locate her without success that a court is likely to dispense with the need for valid consent. Half-hearted or token attempts to find the surrogate will not be enough. Furthermore, it will normally be prudent for the applicants to lay the ground for satisfying these requirements at an early stage. Even where, as in this case, the applicants do not meet the surrogate, they should establish clear lines of communication with her, preferably not simply through one person or agency, and should ensure that the surrogate is made aware during the pregnancy that she will be required to give consent six weeks after the birth.” – para 28
“Secondly, although a consent given before the expiry of six weeks after birth is not valid for the purposes of section 54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six week.” – para 29.
“Thirdly, in the light of the changes affected by the 2010 regulations, the child’s welfare is now the paramount consideration when the court is ‘coming to a decision’ in relation to the making of a parental order. Mr Ford submits, and I accept, that this includes decisions about whether to make an order without the consent of the woman who gave birth in circumstances in which she cannot be found or is incapable of giving consent. It would, however, be wrong to utilise this provision as a means of avoiding the need to take all reasonable steps to attain the woman’s consent.”- para 30.
Re QR (Parental Order: Dispensing with Consent Proportionality) [2023] EWHC 3196 (Fam) para 34 questioned if the court is satisfied that all reasonable steps have been taken, is it proportionate to take any more? As part of that evaluation, the court will need to take account the facts of each particular case, which will include those specific to the context and the cultural situation in the country where the surrogacy has taken place.
Re QR highlighted that consideration needs to be given to the surrogate’s own rights to privacy and respect her Article 8 rights. Any steps taken by the applicant or court that would interfere with those rights must be proportionate and justified.
Consideration needs to be given to any cultural sensitivity and/or stigma which may attach to a surrogate if their family or community are made aware that they have entered into a surrogacy arrangements [paras 17-35].
Where the court is satisfied that consent cannot be reasonably or proportionately obtained, the court can dispense with the surrogate and their husband’s consent (s54 (7)).
Section 54 (8) provides that the court must be satisfied than no monies or other benefit were exchanged (other than expenses reasonable incurred) in the making of the order, any agreement required under section 6, the handing over of the child to the applicants or the making of arrangements with a view to making an order.
Commercial surrogacy is unlawful in the UK and the court needs to ensure that it is not complicit in any activity of this nature.
It would be usual to expect monies to be exchanged to meet the costs of the surrogacy process itself (e.g. IVF) and meet the surrogate’s travel, medical or other costs specifically associated with the pregnancy (e.g. maternity clothing/food).
Theis J set out relevant considerations at para 35 of Re WT (A Child) [2014] EWHC 1303 (Fam) regarding the relevant factors to consider when determining whether costs have are deemed “reasonable”.
Ultimately, the court’s primary consideration is the welfare of the child and can retrospectively authorise payments to ensure the order is secured in favour of the child.
Once the factors under section 54 HFEA have been addressed, the court is required to consider the welfare checklist pursuant to s1 Adoption and Children Act.
The authorities have repeatedly raised concerns that intended parents are entering into surrogacy arrangements without knowledge of the legal requirements.
The preparation of any application for a parental order and supporting statement requires thorough and detailed information regarding the process which has been undertaken, the communications between the applicants and surrogate (and their husband) and the surrogacy agency.
In addition, the applicants will need to set out clearly what information is held in respect of the surrogate, what steps have been taken to identify their whereabouts (if not known) and what, if any risks are associated with undertaking further investigations (e.g. sending a letter to a home address/instructing a private investigator).
If you require any further information regarding any of the issues raised within this article, please do not hesitate to contact the clerks on familyclerks@kbgchambers.co.uk
