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Family Law

The leading authority on all aspects of family law

24 FEB 2015

AB v CD [2015] EWFC 12

AB v CD [2015] EWFC 12
(Family Court, Theis J, 13 February 2015)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2016] 1 FLR 41]

Surrogacy – Consent – Affidavit giving consent signed with a thumb print – Surrogate could not be located – Uncertainty as to marital status at time of agreement – Whether parental orders could be granted

The full judgment is available below.

The court dispensed with the need for the surrogate mother’s consent in circumstances where the consent given was insufficient for the purposes of s 54 of the HFEA 2008 and she could not be located. Parental orders were granted.

The same sex couple were born in the UK and entered into a civil partnership in 2007. Between 2008 and 2013 they lived in Australia and applied for citizenship there. During that time they decided to start a family via a surrogate. Their intention at all times was to return to the UK.

They entered into a surrogacy agreement with a clinic in India and stipulated that the surrogate should be single so that AB would automatically become a legal parent under English and Australian law. They were informed that the surrogate was divorced but were not provided with documentary evidence. The surrogate signed the agreement using a thumb print. The surrogate became pregnant with twins who were placed in the care of the couple shortly after their birth.

Arrangements were made for the twins to travel to Australia and the surrogate signed an affidavit confirming that she had no objection to the children being in the couple’s care and to them going to Australia. Australian passports were obtained. However, it was at this time that the couple became aware that the surrogacy clinic had no paperwork in respect of the surrogate’s divorce.

In proceedings in Australia the equivalent of a child arrangements order was made permitting the child to reside with the couple. In those proceedings a signed affidavit was obtained from the surrogate giving her consent and confirming that she was divorced. A lawyer in India provided an affidavit confirming that the surrogate had read, understood and signed the affidavit. A declaration of parentage was not granted as an application needed to be made under State not federal law.

When the family decided to move back to the UK the applications for British passports for the twins were refused on the basis that they had failed to provide sufficient evidence demonstrating that the surrogate was not married at the time of the agreement. They were granted discretionary registration as British citizens and further enquiries were made of the surrogate with the clinic but she could not be traced.

In an attempt to regularise the twins’ legal parentage the couple made a joint application to adopt them but after being informed of the decision in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) they applied out of time for a parental order. Directions were made for further enquiries to be made of the surrogate but she could not be located and she had no knowledge of the adoption or parental order applications.

It was clear that any prejudice the surrogate might face at not having notice of the applications was minimal and that despite the delay in issuing the application, the requirement under s 54(3) of the HFEA 2008 was met.

Although on the evidence available the surrogate was probably still married at the time of the agreement it was clear that the clinic had acted in good faith and co-operated with the authorities. Her husband was not the father of the children and his consent was not required.

The court was not satisfied that the two affidavits filed on the issue of the surrogate’s consent were sufficient for the purposes of s 54(6) of the HFEA 2008. They were given in the context of the Australian proceedings, not an application for a parental order. The affidavit did not convey the requirement for consent with full understanding of what was involved, namely, acknowledging that the person giving consent would no longer be treated as a parent. However, the lack of consent was not fatal to the application.

Applying the principles in Re D (Children)(Parental Order: Foreign Surrogacy) [2012] EWHC 2631 (Fam) it was clear that the couple had taken all reasonable steps to obtain the surrogate’s consent. Any further delay in determining the application would be contrary to the twins’ welfare and would serve no useful purpose. In all the circumstances the need for the surrogate’s consent could be dispensed with.

The welfare of the children demanded that a parental order be made. A parental order and the consequences that flowed from it from a welfare prospect was far more suited to surrogacy situations. An adoption order in these situations left open the risk of a fiction regarding identity that may need to be resolved by the child later in life.

Case No: ZC14P00894
Neutral Citation Number: [2015] EWFC 12 (Fam)

IN THE FAMILY COURT
SITTING IN BRIGHTON

Date: 13/02/2015

Before:

MRS JUSTICE THEIS

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Between:

AB and CD
Applicants

- and -

CT
Respondent

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Ms Kathryn Cronin (instructed by Goodman Ray Solicitors) for the Applicants

Hearing date: 26th January 2015

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Judgment

Mrs Justice Theis DBE
:

Introduction

[1] This case raises, once again, difficult questions regarding the law of surrogacy, particularly ones involving surrogacy arrangements made in another jurisdiction. The consequences of what I have to decide is of fundamental importance to the parties and the children, as it concerns orders which determine who the legal parents of these young children are.

[2] The particular issues raised in this case can be summarised as follows. Can the court make a parental order in circumstances where

(i)The Respondent surrogate mother (who lives in India) has not had notice of this application and consequently has not had the opportunity to say whether she consents to the making of an order.

(ii)There is some uncertainty as to whether the surrogate was married at the time of the embryo transfer.

(iii)The application for a parental order is made over 3 years after the birth of the children; when the statutory provisions require it to be made within six months.

[3] In considering these difficult issues the court has had the benefit of the applicants being represented by Ms Cronin, instructed by Ms Dally of Goodman Ray, both of whom have considerable expertise in this area of the law.

[4] Ms Baker, the Parental Order Reporter, was present during the hearing. She provided a report which, in the event the court is satisfied that the legal requirements can be met under s 54 Human Embryology and Fertilisation Act 2008 (HFEA 2008), recommends the welfare needs of the children fully support a parental order being made.

[5] Before I consider the facts of this case it may be helpful to make some general points:

(1)This case highlights, once again, the need for those undertaking surrogacy arrangements abroad to take specialist advice. In many of these cases large sums of money are paid for the expenses in undertaking these arrangements. Figures in excess of £15 - 20,000 are not uncommon. Commissioning parents should, at the very least, get an outline of the relevant legal steps they need to take to ensure their position and, more importantly that of any child born as a result of the arrangement, is protected. The cost of that advice is likely to be a minimal expense in the context of the large sums spent on the surrogacy arrangement overall.

(2)Commissioning parents should be encouraged to:

(a)Promptly make applications for parental orders after the birth of the child, even if they are not present in the jurisdiction, providing at least one of them is domiciled in this jurisdiction (s 54 (4)(b). It is only a parental order that provides lifelong security for the child, as it recognises the commissioning parents as the legal parents of the child with all the positive benefits that flow from that. Without that order their legal relationship with the child is best described as precarious; in most cases without such an order being in place, the surrogate mother (and her husband, if she is married) remain the legal parents of the child.

(b)Take steps to ensure there are clear lines of communication with the surrogate mother, and her husband if she is married, to facilitate the giving of consent after the expiry of six weeks from the birth (as required by section 54 (6) and (7)). This should ideally include meeting the surrogate mother.

(c)Ensure there are coherent records regarding any sums paid under any agreement, in particular those that are paid to the surrogate mother.

Background

[6] The applicants are a same sex couple, AB and CD, who were both born in the UK. They have been in a relationship since 2001, and entered into a civil partnership in 2007. They have spent periods living in Australia, most recently between 2008 and 2013, during which time they successfully applied for Australian citizenship. During that time they decided to start a family through surrogacy. They always intended to return to live in this jurisdiction.

[7] They entered into an agreement with the respondent, CT, through Surrogacy Centre India (SCI) a clinic based in New Dehli, India. They had previously had an unsuccessful transfer with another surrogate at SCI. Prior to the agreement with CT in January 2011 the applicants had requested a single surrogate, so that AB would automatically be a legal parent under Australian and English law. They were informed by SCI that CT was divorced, although they did not see any documentation to support that. It subsequently turned out there was none, save for an affidavit from CT asserting she was divorced.

[8] The surrogacy agreement was ‘signed’ by CT by way of a thumb print. It is 29 pages long and contains numerous clauses, including some which limit CT’s ability to manage her health during the pregnancy and make decisions about the delivery of the babies. I agree with the observations of Justice Ryan in her judgment in June 2013 in proceedings issued by the applicants in Australia that these provisions are ‘troubling’. There is some evidence that some documents were explained to CT although I share the concerns expressed by Justice Ryan in her judgment that ‘there is nothing in the document which suggests that before the birth mother signed it that it was read and translated to her’ at the time she signed it.

[9] The applicants received confirmation of CT’s pregnancy in February 2011; a later scan confirmed she was carrying twins. E and F were born in October 2011. They were placed in the applicants’ care after their birth. 10 days later the applicants and the children met CT. They were able to communicate with CT through an interpreter. They gave her a card which had their name and contact details on and took some photographs. The applicants noted in their first statement that they saw CT sign a document, although they had always understood her to be illiterate, because the papers ‘signed’ by her to date all bore a thumbprint.

[10] The applicants made arrangements for E and F to return to Australia with them. CT signed an affidavit stating she had no objection to the children being in the applicants’ care and returning to their home country. AB had a DNA test that confirmed he was the biological father. The children were granted Australian citizenship by descent and were issued with Australian passports. The applicants state it was at this time they discovered SCI did not have any paperwork to confirm CT’s divorce.

[11] Once in Australia the applicants took steps to formalise their relationship with the children. AB made an application for a declaration of parentage to confirm his status as the children’s legal parent and they made joint applications for parenting orders, which are similar to a child arrangements order in this jurisdiction. They confirm where the child should live, and grant parental responsibility to the people named in the order.

[12] Within the Australian proceedings the applicants were required to serve a copy of the application on CT. SCI made arrangements to do this and CT signed two affidavits. The one dated 27 January 2012 confirms that she is divorced, sets out the circumstances of the agreement the parties entered into and she confirmed her consent to the children living permanently with the applicants. This affidavit was in English. On 10 September 2012 an affidavit was filed from Komal Singh Suman, a lawyer in India, who confirmed he had translated the January affidavit to CT and she understood it.

[13] On 7 June 2013 the applicants were granted parenting orders. AB’s application for declaration of parentage was not granted as Justice Ryan considered that was a matter to be determined under state law and not federal law.

[14] In late 2013 the applicants made the decision to move back to the UK and applied for British passports for the children. This application was made on the basis that they were automatically British citizens by descent, that AB is their biological father and legal father, in the same way they were granted Australian citizenship. These applications were refused on the ground that the applicants had been unable to provide satisfactory evidence to show that CT was not married at the time they entered into the agreement. The authorities did not accept the affidavit was sufficient evidence that CT was divorced; in their experience it was unlikely CT would have been single. The applicants therefore made applications for discretionary registration as British citizens. They sought further information from SCI regarding CT’s marital status. SCI reported CT had cancelled two or three appointments with them. They also stated that because CT was married and divorced in a rural area there is no paperwork. The applicants did not pursue this, as CT’s marital status was not required for the discretionary leave application. The discretionary leave application was successful; the children were registered as British citizens and received British passports in early 2014. The children and the applicants came to live here in April 2014.

[15] Once here the applicants took further legal advice regarding their legal status with the children in this jurisdiction. They were concerned that AB’s legal relationship with the children is uncertain (there is no independent evidence that CT was divorced) and CD has no legal relationship with the children as their non biological father. They decided to make a joint application to adopt the children. They sought the court’s permission to make the application before the expiry of 3 years. Hogg J gave them permission to do so on 8 September 2014 and the Applicants gave notice to the relevant Local Authority (LA) of their intention to adopt.

[16] In October 2014 the Applicants were advised of the decision of Sir James Munby, President of the Family Division, in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) where a parental order had been made in respect of a child, despite the application being made more than six months after the child’s birth. The applicants decided to issue an application for a parental order, which they did on 13 October 2014. The adoption proceedings are stayed, pending the determination of this application.

[17] In their second statement in December 2014 the applicants’ stated parental orders were ‘...orders being the only orders that would reflect the reality legally of the family we had created. AB is the children’s biological father and [it] has never seemed right that he would have to adopt them to make sure that we both had equal legal status as their parents. The children are not and were never intended to be our adopted children. It was intended from the outset that the children would be brought up jointly by us, both of being their parents in every sense. This is how they have experienced family life so far and if possible we would like any order that we obtain from the court to reflect the reality of our children’s lives. Any order we obtain to secure the children’s legal status will be lifelong and irrevocable and we believe that this meet[s] the children’s identity needs as children of our biological and psychological family.’

[18] The matter was listed before me for directions in November. I directed further enquiries were made to discover the whereabouts of CT.

[19] An affidavit from Jyoti Kapoor, liaison manager at SCI, sworn on 20 January 2015 sets out the efforts made to date. They contacted the surrogacy agency which CT was with, called Fertility Care India (‘FCI’). A representative of FCI attended CT’s last known address in New Dehli on 18 October. He was informed by the occupier of that property that CT had gone to her home town in West Bengal about a year previously. A neighbour of CT’s in West Bengal was contacted, she informed FCI that CT was not residing in the village and they were not aware where she was. The affidavit states they have no further address for her. The affidavit confirmed that SCI was involved in 2012 when they were asked to contact CT in connection with the Australian proceedings which CT co-operated with.

[20] Therefore, CT has no knowledge of the application to adopt, or the subsequent application for a parental order.

Legal Framework

[21] The application for a parental order is governed by section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008), the Human Fertilisation and Embryology (Parental Order) Regulations (2010 Regulations) and Part 13 Family Procedure Rules 2010 (FPR). The court may grant a parental order under section 54 in respect of a child born though a surrogacy arrangement where the relevant criteria in that section have been complied with, and that such an order meets the child’s welfare needs in accordance with section 1 Adoption and Children Act 2002 (ACA 2002).

The section 54 criteria

[22] Many of the criteria can be taken relatively shortly, as they are obviously satisfied.

[23] Section 54 (1) is met as the evidence demonstrates that the children were carried by CT following the placing in CT of an embryo created with AB’s sperm and an egg from an anonymous donor. AB’s biological connection is confirmed by DNA.

[24] The applicants are civil partners, and thereby fulfil the criteria in section 54 (2).

[25] The time period for making the application as set out in section 54 (3) is six months from birth. At that time the applicants were living in Australia. They had made an application to the Australian court within six months; they state they were not aware they could make an application for a parental order here when they did not live here at that time. Re X was published on 3 October; they made their application 12 days later. I will return to this issue in more detail below.

[26] Section 54 (a) and (b) are both fulfilled. The children have been in the continuous care of the applicants since birth. Both applicants were born in this jurisdiction and their domicile of origin has been retained. Even though they spent time in Australia, and obtained citizenship there, they always intended to return to live in this jurisdiction as they did in 2014.

[27] The applicants are both over 18 years, thereby satisfying section 54 (5).

[28] Turning to the question of consent pursuant to section 54(6) and (7) the applicants request the Court to find that proof of the respondent’s consent is not required in this case as CT cannot be found. This aspect is dealt with in more detail below.

[29] The final criteria is section 54 (8) which enables the court, in appropriate cases, to authorise payments made (other than for expenses reasonably incurred) in consideration of the making of the order, any agreement required by sub section (6), the handing over of the child to the applicants or the making of arrangements with a view to the making of the order.

[30] According to the applicant’s statement the sums paid can be summarised as follows. The total paid by the applicants to SCI is 1,607,950 IR (around £16,000) of which CT received 225,000 IR (around £2,250) as compensation. It is not entirely clear from the documents precisely what CT received, although she has acknowledged in documents the terms of the surrogacy agreement have been complied with. The agreement provides for the surrogate to receive ‘total compensation of Rs. 2, 25,000’. The agreement goes on to provide that Rs.10,000 is paid at the time of embryo transfer and following confirmation of pregnancy and heartbeat scan the monthly payments are Rs.10,000 with the balance remaining paid to the surrogate mother at the time of birth and handing over of the child. The agreement states this monthly sum covers ‘all genuine expenses associated with the pregnancy’. It appears likely that some if not all of the monies received by the surrogate mother were other than for expenses reasonably incurred, although the precise detail remains unclear.

[31] In exercising the courts discretion as to whether the payments should be authorised the court needs to bear in mind the principles approved by the President in Re X paragraph 75 namely

"(1) the question whether a sum paid is disproportionate to "reasonable expenses" is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will.

(2) the principles underpinning section 54(8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child's welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result:

"it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making", per Hedley J in [In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143] at paragraph 10. (5) where the applicants for a parental order are acting in good faith and without 'moral taint' in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child's lifelong welfare."

[32]  The sums in this case are not significantly different to the sums authorised in other similar cases, and the applicants have acted with good faith throughout. They have taken positive steps to ensure all requirements in the jurisdictions they have been dealing with have been complied with, and have taken such action as they can to secure their legal position with the children. In all the circumstances, the children’s welfare demands that the court exercises its discretion to authorise the payments, which I do.

[33] Although not caught by section 54(8) the applicants volunteered in their statement that when they met CT they made an ex gratia payment to her in the sum of 296,006 IR. In their statement they said ‘We gave her this money purely as a gift. We wanted to show her our gratitude for carrying our children and to be assured that she was able to have some comforts following her pregnancy and the difficult births. At the same time we gave her a card; our address, including our email addresses and made it clear we would welcome any contact that she wanted to have with the children’. They were entirely right to disclose this payment; candour regarding all the circumstances concerning the dealings with the surrogate is to be strongly encouraged. There is a danger such a payment could be misinterpreted, but I am entirely satisfied that this payment, together with the explanation for it, is entirely consistent with the applicants’ behaviour throughout. It was a generous and compassionate gift made by them to CT as recognition by them for what she had done and the difficult labour she had.

Time limit

[34] Section 54 (3) provides that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born. In this case the children were born in October 2011 and the application is dated 13 October 2014, some 2 ½ years out of time.

[35] The applicants state they were unaware they were able to make an application here when they were living in Australia. They applied to the family court in Australia within six months of the children’s birth to regularise their legal status there in relation to the children. That application was made in January 2012 and determined in June 2013.

[36] Following their return to this jurisdiction in 2014 they sought specialist advice to take steps to secure their legal relationship with the children here. They made their application for a parental order within 12 days of the decision in Re X was handed down. That case concerned an application made 2 years and 2 months after the child’s birth where the court went on to make a parental order.

[37] The following parts of the judgment of the President in Re X are relied upon in this case:

‘55. Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day's delay to be fatal? I assume that Parliament intended a sensible result. …

56. I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that "the court may make an order … if … the [relevant] conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.

57. I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.

58. If for some reason that is wrong, if to go that far is in truth to take a step too far, the same conclusion is, in my judgment, amply justified having regard to the Convention.



65. I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.’

[38] When considering the time period on the facts in Re X the President said at paragraph 64

‘In one sense that is a long time, both in absolute terms and when compared with the statutory time limit of six months. And it is a very long time indeed compared with the matter of a few days that were fatal to the appellant in Adesina v Nursing and Midwifery Council [2013] EWCA Civ 818, [2013] 1 WLR 3156. But principle demands that I have regard to the statutory subject matter, the background, and the potential impact on the parties if I allow section 54(3) to bar the application. I repeat in this context what I have already said in paragraphs 54-56 above. There are, without labouring the point, three aspects of a parental order which very obviously and very fundamentally distinguish it from the kind of case which the court was concerned with in Adesina. The first is that a parental order goes not just status but to identity as a human being. The second is that the court is looking, indeed is required by statute to look, to a future stretching many, many decades into the future. The third is that the court is concerned not just with the impact on the applicant whose default in meeting the time limit is being scrutinised but also with the impact on the innocent child, whose welfare is the court's paramount concern. In these circumstances the court is entitled, indeed in my judgment it is bound, to adopt a more liberal and relaxed approach than was appropriate in Adesina. After all, as Maurice Kay LJ recognised in Adesina, what the court is required to do, albeit it is required to do no more, is to secure compliance with the Convention. I would not be doing that if I were to deny the commissioning parents and X access to the court.’

[39] I have carefully considered the position of the surrogate mother in this case and whether she may be prejudiced by allowing this application to proceed, particularly in circumstances where she has had no notice of the application. The reality is, on the information the court has, any prejudice she may suffer is minimal. She has had no direct involvement with the applicants or the children since 2011, the evidence points towards her having moved on in her life. She co-operated with the Australian proceedings in 2012 which, not unreasonably, she may have regarded as the end to her involvement in any litigation concerning the children. The tenor of what she said within those proceedings is that she did not anticipate having any future role in the children’s lives. She did not appear willing to co-operate with attending appointments with SCI in late 2013, and the more recent evidence demonstrates she is not contactable at all.

[40] Turning to consider the applicants and the children, they will suffer, adopting the language used in Re X, ‘immense and irremediable prejudice’ if this application is stopped in its tracks. The applicants legal relationship with the children would be significantly different than what they had intended. There are positive benefits to the applicants and the children in allowing this application to proceed. They issued their application very promptly once they were made aware of the decision in Re X. Prior to that they had (wrongly) assumed they would not have been able to make the application whilst living outside the jurisdiction and once in the jurisdiction were advised, prior to Re X, that they needed to make their application within six months of the birth, namely before April 2012.

[41] I am therefore satisfied, in the circumstances of this case, that despite the delay in issuing the application the requirement under s 54 (3) is met.

Consent and notice of the application

[42] I will consider these aspects together, as they are interrelated. In this context it will also be necessary for the court to consider the evidence as to CT’s divorce. If she is still married her husband is the legal father of the children ‘unless it is shown that he did not consent to the placing in her of the embryo.’ (s 35 (1) HFEA 2008).

[43] Dealing first with the evidence of CT’s marital status. According to the applicants SCI informed them CT was divorced. In an affidavit from CT dated 22 October 2011, produced by SCI, she states she got married to KT on 21 February 2002 at an address in West Bengal and got a customary divorce on 14 August 2002 at the same address. In that affidavit she states

‘I say that Indian law did not require the marriage to be compulsorily registered at that time. The only legal requirement for Indian marriages at that time were that that the marriage should be performed in accordance with the customary/religious rites governed by the applicable law to the religion of both or either of the parties to the marriage. Therefore, my marriage was governed by the Hindu Marriage Act, 1956 and although there is provision in the Act to register the marriage it was not compulsory at that time. The marriage is valid regardless of whether it is registered or not (Seema v Ashwani (2008) 1 SCC 180)’.

She confirms in that affidavit she has not married again and that the contents of the affidavit have been read over to her.

[44] When the applicants applied for British citizenship for the children the Foreign and Commonwealth Office refused the application stating ‘The reason being that the documentation forwarded in regard to your surrogate being unmarried at the time of your children’s birth does not meet the normal requirements to confirm her single status at that time. The response we have received from our Policy unit, including seeking local advice from our authorities in India, has confirmed that it is correct that a Hindu marriage was not required to be registered up until 4-5 years ago, but the divorce must be registered by law and has always been the case in law. We have also been informed that it is not common for a surrogate to be single and as such this leaves it open to there being the possibility that a marriage may still exist.’

[45] Although the court has limited material to consider, it appears on what is available the divorce does need to be registered, according to CT it wasn’t with the consequence it is more likely than not she was still legally married at the time of the treatment, even if she did not regard herself as such. It is correct in many of the documents she signed she is described as d/o (daughter of) rather than w/o (wife of), but this is consistent with her belief that her divorce was effective. As a consequence her husband is treated as the father of the children, unless it can be shown he did not consent.

[46] The only case in which this issue has been considered in is Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam). It concerned an application for a parental order under s 30 HFEA 1990 following a domestic surrogacy arrangement where the commissioning parents were not domiciled in this jurisdiction, and the insemination was not carried out through a clinic. The surrogate mother was married, although separated from her husband at the time of treatment. He had moved to live in Spain. He was aware of her general intention to act as a surrogate and had no objection to her so doing, but was not aware of the actual surrogacy procedure that took place and so was not in a position either to consent, or not consent, to the particular arrangement. McFarlane J (as he then was) declared that he did not consent to his wife’s insemination and was therefore not the child’s father. He observed in considering the wording in s 28(2) HFEA 1990 (s 35 HFEA 2008 is in identical terms) it requires the court to be satisfied (‘it is shown’) that the husband ‘did not consent’, it is necessary for the court to look more widely than simply ascertaining whether or not the husband signed a form at a clinic.

[47] Having considered the evidence in this case I have reached the conclusion the court can infer from the information that is available that CT’s husband did not consent to the surrogacy arrangement. This conclusion is supported by CT being referred to as ‘d/o’ (daughter of) in the various documents she signs with the clinic; the fact that the agreement and supporting arrangements (such as CT’s counselling arranged by SCI) make no reference to the involvement of CT’s husband; SCI appear to have acted in good faith and co-operated with the authorities in India, Australia and here; all the arrangements regarding the surrogacy took place in Dehli, whereas the information the court has about CT’s marriage relates to an address in West Bengal.

[48] Therefore, even though CT was probably still married at the relevant time her husband is not the father of the children. As a consequence his consent is not required under s 54 (6).

[49] Turning to CT’s consent the evidence demonstrates the following.

[50] In the judgment dated 7 June 2013 in the Australian proceedings Justice Ryan stated as follows:

‘Although it caused some inconvenience, at the Court’s insistence, the Application for Consent orders and other documents filed in these proceedings were translated and served on the birth mother. This resulted in two affidavits supposedly sworn by her which suggest that she consented to orders that the applicant and respondent have equal shared parental responsibility and that the children live with them. Again, the affidavits were written in English and bore her thumb print. There was no evidence that those documents were translated or that she understood their contents before she placed her thumb print. Eventually, an affidavit was received from Mr Suman, who is an advocate and notary public in India. He affirmed that he read the documents to the birth mother in Hindi and she acknowledged their content. Reference to the documents is to the birth mother’s affidavit dated 27 January 2012 and an undated document which is exhibit “C”. Including those documents received after the last hearing date, the applicant established service, notice of the hearings and that the birth mother has given her consent to the application.’

[51] In CT’s affidavit dated 27 January 2012 she sets out details regarding the surrogacy arrangement between the parties and then states as follows

‘5. I was aware that [AB] was in a long standing relationship with [CD] and that they intended to raise any resulting children together.

6. At the end of 2010 I received counselling through the INF Clinic, SCI Healthcare in New Dehli in relation to the surrogacy arrangement. At the same time and subsequent to January 2011, I received all medical tests required as part of the pregnancy and birth.

7. By January 2011, in particular I agreed with [AB] as follows:

(a) that an in-vitro fertilisation procedure would be used to impregnate me with embryos using ovum and sperm other than mine.

(b) that [AB] would be present at the birth of the child/ren as the intended parents would be present as my Husband to support me through the process of birth or a caesarean section.

(c) that [AB’s] name would appear on the birth certificate as the father and the name of the mother would be recorded as Surrogate without naming me.

(d) that [AB] would obtain Parenting Orders once he returned to Australia after the birth of the child/ren giving granting full parental responsibility during the child/ren’s lifetime in making decisions as to their day to day and long term welfare and development.

(e) that I would not be financially responsible at any time for the medical expenses, expenses associated with insemination, pregnancy and birth and any other expenses of the child/ren during his/her childhood.

(f) that I would surrender the child/ren after birth to [AB].

(g) that I would have no role in making decisions about the day to day care or long term welfare and development of the child/ren or where the child/ren would live.

….

14. Following the birth of the children I am aware [AB] and [CD] named the children [P] and [D]. I did not complete any paperwork associated with filing the applications for the Birth Certificates. I took no part in making the decision as to the children’s names.

15. Since the birth of [P] and [D], I saw the children on only one occasion on [date in October 2011], following my discharge from ISIS Hospital. I observed [K] and [P] were very happy and bonding with the children. I believer [K] and [P] will give the children a good life in Australia.

16. When I saw [AB] and [CD] with the children on [date], [AB] and [CD] provided me with an email and street address in Australia if I wished to contact them or the children in the future. I also agreed to provide a current address where I may be contacted from time to time.

17. I believe it is in the best interests of [P] and [D] that the Consent Orders that give shared parental responsibility in decision-making to [AB] and [CD] be made so that there is stability in the children’s lives as they grow up.

17. I fully support and consent to the Orders sought being made.’

[52] Ms Cronin submits this affidavit was accepted by a court of comparable jurisdiction as being consent to the applications made there, namely for parenting orders and a declaration of parentage in relation to AB. She submits whilst it is not in Form A101A it is ‘to the like effect’ as provided for in rule 13.11 (1) FPR 2010. This provides

‘Unless the court directs otherwise, the agreement of the other parent or the woman who carried the child to the making of the parental order may be given in the form referred to in Practice Direction 5A or a form to the like effect.’The form referred to is Form A101A. The relevant part of that form provides‘If a parental order is made in respect of my child, I understand that I will no longer legally be treated as the parent and that my child will become a part of the applicants’ family.'

[53] Ms Cronin submits the effect of the affidavit from CT amounts to a good summary of what a parental order means. She relies in particular where it refers to ‘..granting [AB] full parental responsibility during the child/ren’s lifetime in making decision as to their day to day and long term welfare and development’, not being financially responsible during the children’s childhood and that she would ‘have no role in making decisions about the day to day care or long term welfare and development of the child/ren or where the child/ren would live’. The affidavit was sworn on 27 January 2012, more than six weeks after the birth of the children so, she submits, satisfies s 54 (7) which requires the surrogate mother’s consent to be more than six weeks after the birth.

[54] Section 54 (6) provides the court must be satisfied that CT has ‘freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.’ That statutory requirement of consent is a fundamental element of surrogacy law in this country; that a parental order should normally only be made with the consent of the woman who carried and gave birth to the child. This applies equally whether the surrogate mother is present in this jurisdiction, or another one.

[55] Whilst I can see the force of Ms Cronin’s submissions, I do not find they satisfy what is required by s 54 (6).

[56] Firstly, this affidavit is given in a different context. Albeit there are similarities between the orders being sought in Australia and those applied for here; it is not consent to the making of a parental order. The effect of which is to extinguish CT’s position as a legal parent to the children.

[57] Secondly, the parts of the affidavit relied upon recite what was agreed to in the Gestational Surrogacy Agreement in January 2011, 9 months before the birth. The only express reference to her views in January 2012 is in paragraph 17 when she states ‘I believe it is in the best interests of [P] and [D] that the Consent Orders that give equal shared parental responsibility in decision-making to [AB] and [CD] be made so that there is stability in the children’s lives as they grow up.’ That does not convey what s 54 (6) requires, namely consent ‘with full understanding of what is involved’ namely acknowledging that the person giving consent will no longer be treated as a parent.

[58] Thirdly, this requirement for consent needs to be considered in the context where the HFEA 2008 expressly provides an exception to this requirement for consent where the person cannot be found or is incapable of giving agreement (s 54 (7)). So, subject to the court being satisfied that this provision is met, the absence of consent, or the material available being insufficient to meet this requirement, is not fatal to the application.

[59] Turning to consider s 54 (7) to date there is only one reported decision in Re D (Children)(Parental Order: Foreign Surrogacy) [2012] EWHC 2631 (Fam) where Baker J stated as follows

‘26……..The question therefore arises as to how the provision should be interpreted and applied.

27.Mr Ford submits, and I accept, that there are three matters which should be taken into account.

28.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.

29.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 weeks.

30.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. ‘

[60] The applicants have filed a statement of facts, pursuant to rule 13.10 (2) (b) FPR 2010 setting out the basis they submit CT can’t be found.

[61] Applying the principles in Re D to this case it is clear the applicants have taken all reasonable steps to obtain CT’s consent. They have through SCI sought to locate her, but all efforts made to date have been unsuccessful. SCI have stated that they have no other means of contacting her. To date SCI have been entirely co-operative in all that has been asked of them. They assisted with the arrangements in 2012 to serve CT with the Australian proceedings, for her to swear an affidavit and for that to be interpreted to and explained to her by an advocate and notary. They also co-operated with the attempts to gain further information from CT in 2013, which proved unsuccessful. I am satisfied that no further steps can reasonably be taken to locate CT.

[62] Although I have concluded the content in the affidavit sworn by CT on 27 January 2012 is insufficient to meet the requirements of s 54 (6) I can take it into account when considering this aspect. It is apparent from that affidavit CT consented to giving up the children, was able to meet with the applicants after the birth and co-operate with attending appointments and completing documents in 2012 in the context of supporting the applications made by AB and CD in the Australian courts.

[63] I am clear that any further delay in coming to a decision about the making of a parental order is contrary to the children’s welfare. On the information I have there would be no purpose served by any further delay.

[64] In the circumstances of this case I conclude that the consent of CT is not required, on the grounds she cannot be found.

[65] It follows that having reached this conclusion I also dispense with the need for CT to be served with this application on the grounds she cannot be found.

[66] All of the requirements under s 54 HFEA 2008 have been satisfied. I now turn to consider the question of E and F’s welfare.

Welfare

[67] The court is required to consider the lifelong welfare needs of these young children pursuant to the provisions of s 1 Adoption and Children Act 2002 (ACA 2002). It is plainly in the interests of each of these children that the commissioning parents to be recognised as their legal parents. It is contrary to their welfare for the surrogate mother to retain any form of legal right or responsibility in relation to them.

[68] Ms Baker’s report is entirely positive. She visited the family on two occasions and her report describes the close and loving relationship she observed between the applicants and the children. Her report concludes the children’s physical and emotional needs are addressed by the applicants to a high level, she considers the applicants to be well attuned to the children’s needs and feels confident they will be able to ‘support and assist the children as they grow and develop with issues to do with their culture and identity’.

[69] I agree with Ms Baker’s assessment, it is wholly supported by the other material in the papers.

[70] Ms Cronin outlined in her submissions the welfare advantages of a parental order, as compared to an adoption order. In particular, she makes the following points:

(1)An application for a parental order is essentially declaratory in nature and confers a fundamental status on the applicant and the child who is the subject of the application. A v P [2011] EWHC 1738 (Fam) paragraph 12

(2)The State is required to protect a child’s identity under Article 8 of the United Nations Convention of the Rights of the Child (UNCRC), which includes the legal recognition of relationship between parents and children A v P (ibid) paragraphs 27 and 28

(3)She takes issue with what I said in A v P at the end of paragraph 30

(4) ‘The effect of a parental order is the same as an adoption order’. She accepts that in the context of what I was saying in the preceding sentence it may be right, but as a general proposition it is not. She drew the courts attention to section 67 (1) ACA 2002 which provides ‘An adopted person is to be treated in law as if born as the child of the adopters or adopter.’ This is what demarks the difference between the two orders. Adoption orders create a presumption in law that the child is treated as if the biological child of the adopters. A parental order does not require that presumption to be made. Both orders are transformative, but a parental order proceeds on the assumption one of the applicants is the biological parent. That is one of the key criteria in s 54 HFEA. It doesn’t change the child’s lineage as an adoption order does; a parental order creates a legal parentage and removes the legal parentage of the birth family under the provisions of the HFEA 2008. Unlike adoption there is already a biological link with the applicants before the parental order application is made. Its purpose is to create legal parentage around an already concluded lineage connection.

(4)From the point of view of the child the orders are different. An adopted child is seen to have had a family created for it, whereas in a surrogacy arrangement the child’s conception and birth has been commissioned by the parents, the child has a biological connection and the same identity as one of the parents. The latter arrangement is more congruent with a parental order than an adoption order.

(5)These differences are important welfare considerations from the child’s perspective. These are the reality of the identity issues children will need to resolve. In surrogacy situations the court by making a parental order settles the identity issue and does not leave other fictions to be resolved, which could be the case if an adoption order was made in these situations.

[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.

[72] As the President stated in Re X at paragraph 7

‘Adoption is not an attractive solution given the commissioning father’s existing biological relationship with X. As X’s guardian put it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X’s identity: the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents.’

I respectfully agree.

[73] I am clear in this case the welfare of each of these children requires a parental order is made in relation to each child, which is the order I shall make.

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