4 PAPER BUILDINGS

Surrogacy : Law and Procedure
What is Surrogacy?

A SEMINAR ON 2 OCTOBER 2013
Julia Townend
SURROGACY: LAW AND PROCEDURE

WHAT IS SURROGACY?





The practice whereby one woman carries a child for another with th...
Non-commercial surrogacy arrangements are not illegal in this jurisdiction. Lawyers in the
UK must not negotiate a surroga...
the arrangements unless the court authorises the payment (which it may do so
retrospectively) (section 54(8) HFEA 2008). T...
Notably following Re L (A Minor) [2010] EWHC 3146 international surrogacy cases
are transferred to the High Court via the ...
without moral taint in their dealings with the
surrogate mother?
3) Were the applicants party to any attempt to
defraud th...
Re TT (Surrogacy) [2011] EWHC 33
Baker J

A couple searched, through surrogacy websites, for
a woman prepared to give birt...
not been disproportionate and it was in the welfare
interests of the children to make the parental
orders.
A v P (Surrogac...
The court refused the application to set the
parental order aside. The court considering such
application should be guided...
Department of Health which has regulatory
responsibility in this area.
The Applicants made payments to surrogate
mother to...
Beginnings operate legally in helping surrogacy agreements to be made even if they charge
membership fees.




The posit...
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Surrogacy Seminar October 2013

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Surrogacy Seminar October 2013

  1. 1. 4 PAPER BUILDINGS Surrogacy : Law and Procedure What is Surrogacy? A SEMINAR ON 2 OCTOBER 2013 Julia Townend
  2. 2. SURROGACY: LAW AND PROCEDURE WHAT IS SURROGACY?   The practice whereby one woman carries a child for another with the intention that the child should be handed over at birth. Surrogacy may be partial (where the surrogate mother who gives birth to the child is the genetic mother and the egg is fertilised by the sperm of the commissioning father) or total (where the surrogate mother who gives birth to the child receives an egg into her womb which is either already fertilised usually by way of IVF). The law and procedure relating to surrogacy is set out in the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’), the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (‘2010 Regulations’) and FPR 2010, Part 13 (and some rules in FPR 2010, Part 12) as well as the case law. Surrogacy arrangements are regulated by the Surrogacy Arrangements Act 1985. THE STATUS OF AND INVIDIVUALS INVOLVED IN SURROGACY AGREEMENTS  The surrogate mother: Treated as the child’s legal mother (section 33(1) HFEA 2008) and thus she automatically has parental responsibility for the child. The surrogate mother’s parental responsibility for the child can only be extinguished in two ways: 1) By the making of a parental order pursuant to section 54 HFEA 2008; or 2) Query, through the adoption of the child.  The commissioning father: The genetic father of the child. If the surrogate mother is married (and unless it is proved that her husband did not consent to the insemination – s35(1) HFEA 2008), the husband of the surrogate mother will have parental responsibility. If the surrogate mother is not married the father will be in the same position as any other unmarried father but is likely to be the legal father. He is entitled to seek a parental responsibility order (section 35(1) HFEA 2008).  The commissioning parents: Will not have parental responsibility for the child unless by order of the court. Surrogacy arrangements are not legally binding in this jurisdiction, which makes a parental order vital.  Surrogacy arrangements: The arrangement of surrogacy on a commercial basis is a criminal offence (Surrogacy Arrangements Act 1985). Of course commercial surrogacy is legal and sometimes regulated in overseas jurisdictions – USA, Ukraine, India to name a few.
  3. 3. Non-commercial surrogacy arrangements are not illegal in this jurisdiction. Lawyers in the UK must not negotiate a surrogacy agreement. OBTAINING A PARENTAL ORDER Section 54 HFEA 2008 outlines the provisions relating to the making of parental orders. The Applicants - - Parental orders are available to married couples, to civil partners and to couples living as partners in an enduring family relationship (section 54(2) HFEA 2008). It is not possible for a single person to apply for a parental order. If, after issuing, one of the applicants dies the court retains jurisdiction to grant a parental order in respect of both applicants (A v P (Surrogacy: Parental Order: Death of Applicant) [2012] 2 FLR 145). Both members of the couple must be over the age of 18 when the order is made (section 54(5) HFEA 2008). Conditions for the making of a parental order - - - - Child must have been conceived as a result of either partial or total surrogacy and using the gametes of at least one of the commissioning parents (section 54(1) HFEA 2008). Child must be living with the commissioning parents at the time of the application and at the making of the order (section 54(4)(a) HFEA 2008). At least one of the couple must be domiciled in the UK, Channel Islands or Isle of Man at the time of the application and at the making of the order (section 54(4)(b) HFEA 2008). On the question of domicile see A v B (Parental Order: Domicile) [2013] EWHC 426 and Z and B v C (Parental Order: Domicile) [2011] EWHC 3181 NB there is no similar requirement in respect of the surrogate mother – if she is domiciled abroad and the child is born abroad a parental order may still be made. The application must be made within six months of the birth of the child (section 54(3) HFEA 2008) NO EXCEPTIONS. The surrogate mother (and father if relevant) agree freely, unconditionally and with full understanding of what is involved to the order being made unless they cannot be found or are incapable of giving agreement. Such agreement must not be given within six weeks of the birth of the child (section 54(6) and section 54(7) HFEA 2008). Any agreement must be completely, properly and professionally translated when put before the court. Other than for expenses reasonably incurred no money or benefit has been given or received in consideration for the making of the order, the handing over of the child, or
  4. 4. the arrangements unless the court authorises the payment (which it may do so retrospectively) (section 54(8) HFEA 2008). This legislative power has been applied in all commercial surrogacy overseas cases. There appears to be no tariff or guidance in terms of quantum in respect of reasonable expenses. Considerations for the court The welfare of the subject child is paramount and should be considered throughout his or her entire lifetime (Paragraph 2 and Schedule 1 2010 Regulations). Section 1 of the Adoption and Children Act 2002 applies to applications for parental orders. Revocation Parental orders have the same legal status as adoption orders. There is no statutory provision for revocation of a parental order other than by appeal. See G v G (Parental Order: Revocation) [2012] EWHC 1979 Refusal of surrogate to relinquish care Commissioning parents may seek a residence order pursuant to section 8 CA 1989 or care and control of the child under the inherent jurisdiction of the High Court. Such applications will be decided on the basis of the child’s welfare. See Re TT (Surrogacy) [2011] EWHC 33. Procedure: FPR 2010, Part 13 Application Form C51 Applicants Husband and wife/civil partners/couple in an enduring family relationship (FPR 2010, r. 13.3(1)) Respondents Birth mother (surrogate) Husband of surrogate (if any) Other person with parental responsibility Other person in whose favour there is provision for contact (FPR 2010, r. 13.3(2)) The court may make any other person (child through guardian) or body (local authority or Home Office) a party to proceedings Court Family Proceedings Court (Article 5(2) ATPO 2008)
  5. 5. Notably following Re L (A Minor) [2010] EWHC 3146 international surrogacy cases are transferred to the High Court via the County Court, which an administrative process. Notice To any local authority or voluntary organisation that has at any time provided accommodation for the child (FPR 2010, r. 13.6(2)) To a person with foreign parental responsibility on Form C6AT (FPR 2010, r. 13.4) Service 14 days prior to first directions hearing (FPR 2010, r. 13.6(1)) Acknowledgment Within 7 days of service (FPR 2010, r. 13.7) of service Parental order reporter To be appointed by the court as soon as practicable after issue of the application (FPR 2010, r. 13.5(1)(a)(iii)) Where consent is not required Applicant to file statement of facts setting out basis for person in question being unable to be found/being incapable of giving consent (FPR 2010, r. 13.10(2)) Proof of consent On form A101A or a form to like effect (FPR 2010, r. 13.11(1)) Any form of agreement witnessed outside the UK should comply with the formalities. Order Order on Form C53 or refusal on Form C54 SOME OF THE CASE LAW AUTHORITY DETAILS Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 Ukranian surrogacy arrangement in which €27,115 was paid to a surrogate mother who used it for a deposit on a new home. The parental orders were made in respect of the twins born. Consideration was given to the approach to deciding whether to authorise a payment other than for expenses reasonably incurred. The court considered that the court poses three questions: 1) Was the sum paid disproportionate to reasonable expenses? Hedley J 2) Were the applicants acting in good faith and
  6. 6. without moral taint in their dealings with the surrogate mother? 3) Were the applicants party to any attempt to defraud the authorities? The court held that the lifelong perspective of the child’s welfare (ACA 2002) should be preferred over the minority perspective (CA 1989). Attention was drawn to the potential pitfalls and difficulties which lie ahead for commissioning parents who seek to use a foreign surrogate mother. Re S (Parental Order) [2009] EWHC 2977 Hedley J Californian surrogacy arrangement in which $23,000 (including expenses) was paid. The foreign surrogacy agreement was retrospectively approved. The court identified three considerations: 1) Court must take account of the need to ensure the spirit of the English law is not breached. 2) Court must be astute not to approve an arrangement seeming to facilitate the purchase of children abroad. 3) Court should be astute to ensure the sums involved are not such as to overbear the will of the surrogate. Re L (Commercial Surrogacy) [2010] EWHC 3146 Hedley J Commercial surrogacy agreement in the USA. It was held that welfare is no longer merely the court’s first consideration but becomes its paramount consideration. Any payment described as compensation or a similar word is prima facie a payment beyond reasonable expenses requiring scrutiny. Hedley J stated that “it will only be in the clearest case of abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making” [10] but that “notwithstanding the paramountcy of welfare, the court should continue carefully to scrutinise applications... with a view to policing the public policy matters” [12]. It was stated per curium that lateral transfer of cases from the Family Proceedings Court to Inner London FPC should be considered where cases have an international element (it has specialist expertise).
  7. 7. Re TT (Surrogacy) [2011] EWHC 33 Baker J A couple searched, through surrogacy websites, for a woman prepared to give birth to a child for them. The single mother approached the couple and offered her services as a surrogate and an unwritten surrogacy agreement was reached. The couple paid the surrogate mother £4,500 and bought her maternity clothes. The mother changed her mind and decided she wished to keep the child in due course. When the child was 7 days old the father applied for a residence order and the surrogate mother sought the same. A parental responsibility order was made by consent in favour of the father. A residence order was made in favour of the mother but with a defined interim contact order in favour of the father, relisting the case for review. Re IJ (Foreign Surrogacy Agreement: Parental Order) [2011] EWHC 921 Hedley J Ukrainian surrogacy agreement whereby the male applicant donated sperm to fertilise an anonymous donor’s egg. The surrogate mother was married and under UK law the surrogate and her husband were the child’s legal parents (the opposite was true in the Ukraine) which caused problems when the applicants sought immigration clearance for the child into the UK. The parental order was granted and it was held that notice to the Home Office of a parental order application was not necessary as a matter of course in cases involving overseas surrogacy. The Border Agency was intimately involved in the immigration procedures for such cases and leave was almost inevitably given. Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 The applicants commissioned two surrogates through a fertility clinic in India. Both the surrogates and the husband of one of them signed documentation such that they renounced all legal rights to any child born of the agreement. The male applicant was the biological father of the children and they were conceived using the same egg donor. The doctor at the clinic claimed 230,000 Rupees had been paid to each surrogate whilst the parents’ lawyer maintained it had been the agreed 200,000 Rupees. Parental orders were made. Although the payments made went beyond reasonable expenses they had Wall P
  8. 8. not been disproportionate and it was in the welfare interests of the children to make the parental orders. A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 Theis J Z and B v C (Parental Order: Domicile) [2011] EWHC 3181 Theis J G v G (Parental Order: Revocation) [2012] EWHC 1979 Hedley J A married couple entered into a surrogacy agreement with an Indian clinic. The husband was definitely the child’s father and it was possible that the wife was the child’s mother. The total payments made in this case were about £4,500. Five months after the application for a parental order was issued the husband died of liver cancer. The parental order was granted. It was held that the court should interpret section 54 HFEA 2008 so that the death of the applicant husband did not prevent the making of a parental order in favour of his wife: but for the husband’s death the child would have remained in the couple’s joint care. Two Israeli male applicants in a same-sex relationship had lived in the UK for 4 years. They applied for parental orders in respect of twins conceived via an Indian surrogate with a South African egg donor and using sperm from one of the fathers. Upon birth the twins were granted Israeli passports whereupon they were taken to Israel and eventually granted entry clearance to the UK. The court found the English domicile requirement established, namely that there was a fixed intention to remain permanently or indefinitely in this jurisdiction. A married couple had a child via a surrogacy arrangement but separated shortly after the child’s birth (following which the wife cared for the child with the husband having contact). £10,000 changed hands as part of the arrangement. The husband (biological father) had parental responsibility by virtue of section 4(1) CA 1989 but the wife had no legal or biological status. A Circuit Judge made a parental order absent any parental reporter’s report or analysis of section 58(4) HFEA 2008. The procedural requirements were not complied with. Following separation section 8 CA 1989 proceedings were commenced. The husband sought to have the parental order set aside .
  9. 9. The court refused the application to set the parental order aside. The court considering such application should be guided by the authorities on revoking adoption orders. There was no statutory power to set aside a parental order and no inherent power other than in exceptional circumstances. Re D and L (Surrogacy) [2012] EWHC 2631 Baker J Two male civil partners entered a surrogacy arrangement through a clinic in India and paid sums equivalent to approximately £17,000. The clinic that arranged the surrogacy in India told the applicants that the surrogate could give her consent just three or four weeks after the birth. The surrogate subsequently disappeared and neither she nor the clinic could be contacted. The surrogate’s consent was not valid for the purposes of section 54(6) HFEA 2008 (given less than six weeks after the birth) so the court dispensed with her consent on the basis she could not be found. Re A and B (Parental Order: Domicile) [2013] EWHC 426 Two men living in the UK (one born in Poland the other born in the USA) moved to the UK and entered into a surrogacy agreement via a clinic in India whereby one of the men was the biological father and the egg donor and surrogate mother originated from India. The child was issued with a US passport and was granted entry clearance to the UK. Upon their return to the UK the non-biological father applied for a parental responsibility order (wrongly believing the biological father already had parental responsibility). The order was incorrectly granted and subsequently substituted with a parental order. The men satisfied the domicile requirement Theis J Re C [2013] EWHC 2408 Theis J Californian surrogacy arrangement in which compensation to the surrogate was $38,000. Parental order granted. J v G [2013] EWHC 1432 Theis J Twins were born pursuant to a Californian surrogacy arrangement. The Applicants paid the British Surrogacy Centre of California which operates from an address in Essex £3,500 for the consulting services provided. The Judge sent a copy of her judgment (which quotes the agreement signed between the Applicants and the British Surrogacy Centre) to the
  10. 10. Department of Health which has regulatory responsibility in this area. The Applicants made payments to surrogate mother totalling $56,750. Parental orders were granted. The court warned that parental orders must be applied for within six months of the child’s birth and the court has no power to extend that period. Re P-M [2013] EWHC 2328 Theis J Californian surrogacy arrangement. The court considered that section 54(8) HFEA 2008 requires consideration of payments made by the Applicants to the commercial organisation facilitating and arranging the surrogacy over and above the payments to the surrogate mother. The payments to the organisation of $21,500 had to be scrutinised so as not to offend against public policy requirements. The court was satisfied that the sum paid to the agency was not disproportionate and the Applicants acted in good faith. AB v DE [2013] EWHC 2413 Theis J The child was conceived through IVF treatment in Moscow using the First Applicant’s sperm and the eggs of an anonymous Russian donor. The child was carried by a married Russian surrogate mother. The total sum paid was €50,000 out of which payments were made to the surrogate mother. The court explored the average wage in Russia. IMPORTANT POINTS FOR PRACTITIONERS  Section 2(1) of the Surrogacy Arrangements Act 1985 provides as follows: No person shall on a commercial basis do any of the following acts in the United Kingdom, that is – (a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement, (b) offer or agree to negotiate the making of a surrogacy arrangement, or (c) compile any information with a view to its use in making, or negotiating the making of surrogacy arrangements; and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis. This includes lawyers! It is an offence to profit by helping someone else to make a surrogacy arrangement so lawyers should not advise a commissioning couple about the terms of a surrogacy arrangement. With considerable care and caution a lawyer may feel able to advise about domestic law and how best to comply with it. NB non-profit making organisations such as COTS and Surrogacy UK and now, Brilliant
  11. 11. Beginnings operate legally in helping surrogacy agreements to be made even if they charge membership fees.   The position in law can be complicated before the making of a parental order in the UK if the child was born overseas where commercial surrogacy is legal and the child’s legal status differs in the country of his or her birth from that which she will have in the UK. Where the child remains abroad (and thus the English court may not have jurisdiction) it would be premature for the court to indicate a parental order is likely to be granted, even if this may assist with immigration entry clearance.  It was stated per curiam in Re IJ (Foreign Surrogacy Agreement: Parental Order) [2011] EWHC 921 that those who travelled abroad to make surrogacy arrangements should take advice from specialists in English law.  Commissioning parents should obtain immigration and family law advice before entering into any domestic or overseas surrogacy arrangements.  The appropriate order should be obtained in the country of the child’s origin. Whilst these will have no lawful effect here it is important that foreign formalities are observed.  If the father is genetically related to the child and his name goes on the UK birth certificate he will have parental responsibility in respect of the child and will share it with the surrogate.  If the birth certificate is non-UK then if one of the commissioning parents is the biological father he should sign a parental responsibility agreement before the child enters the UK in front of a court official or another appropriate official.  A commissioning couple should redraft their wills prior to the birth of the child such that any children subsequently born can be provided for. It will also no doubt be necessary to review pension benefits and life insurance policies. © Julia Townend 4 Paper Buildings October 2013

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