Our website is set to allow the use of cookies. For more information and to change settings click here. If you are happy with cookies please click "Continue" or simply continue browsing. Continue.

Family Law

The leading authority on all aspects of family law

28 JUL 2016

Re F and M (Children) (Thai Surrogacy) (Enduring Family Relationship) [2016] EWHC 1594 (Fam)

Re F and M (Children) (Thai Surrogacy) (Enduring Family Relationship) [2016] EWHC 1594 (Fam)

(Family Division, Russell J, 12 January 2016)


Private law children – Surrogacy – Application for parental orders – Enduring relationship – Thai surrogacy arrangement – Applicants in a relationship less than a year before agreement


 Parental orders were made in respect of the twins conceived via a surrogacy arrangement in Thailand.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Case No: ZC 15P00720
Neutral Citation Number: [2016] EWHC 1594 (Fam)

IN THE FAMILY COURT AT THE ROYAL COURTS OF JUSTICE

IN THE MATTER OF THE HUMAN FERTILISATION & EMBRYOLOGY ACT 2008, SECTION 54 (2) & (8)
IN THE MATTER OF F & M (Twins) (Born 13th January 2015)


Royal Courts of Justice
Strand, London, WC2A 2LL


Date: 12/01/2016


Before:


MS JUSTICE RUSSELL


- - - - - - - - - - - - - - - - - - - - -


Between:


P & B 
1st & 2nd Applicants

- and -

Z
Respondent


- - - - - - - - - - - - - - - - - - - - -


Dorothea Gartland (instructed by Watson Farley & Williams LLP) for the Applicants
The Respondent was not represented and did not attend court


Hearing dates: 12th January 2016


- - - - - - - - - - - - - - - - - - - - -


Judgment

The Hon. Ms Justice Russell DBE:

Introduction

[1]  This application for parental orders concerned twins, a girl (F) and a boy (M), born in Thailand as a result of a commercial surrogacy agreement entered into by the Applicants and a gestational surrogate. During her investigation the Parental Order Reporter, an experienced member of the Cafcass High Court Team had expressed reservations about the relationship of the applicants and whether it was, in fact, an enduring family relationship as required by s 54 (2) (c) of the Human Fertilisation and Embryology Act 2008. The court had concerns about the status and legality of the agreement entered into in Thailand, in addition to which there were the financial payments made in Thailand to the clinic and the surrogate which would require consideration under s 54(8).
[2]  Commissioning parents of children born as a result of surrogacy agreements should be encouraged to apply to the court for parental orders so that the legal status of the children can be secured into adulthood and throughout their lives. Despite the concerns raised the court made parental orders in respect of both children for the reasons set out below.

The applications

[3]  F and M were born on 13 January 2015 in Phyathai 2 Hospital, Bangkok. The twins were conceived by way of IVF at a clinic in Bangkok, using a donor egg and sperm from the 1st applicant (P). The fertilised eggs were then implanted in the respondent who carried the twins under the terms of a commercial surrogacy agreement. As soon as they were born the twins have been in the sole care of the applicants, their parents. On 29th May 2015, the applications for parental orders in respect of F and M were submitted to the Central Family Court in London on behalf of the applicants; along with their Thai birth certificates and certified copy translations and Forms A101A dated 22nd May 2015 signed by the respondent in the presence of a notary.

[4]  The respondent was subsequently served with Thai translations of the submitted Forms C51 and the C52 on 12th June 2015. She signed the Form C52, in Thai and English, in the presence of a notary on 16th June 2015 so acknowledging the applications in respect of the twins; which was filed at the Royal Courts of Justice on 24th June 2015. On 23rd June 2015 at the Central Family Court in London an order was made appointing Lillian Odze as the parental order reporter (POR). At the first directions appointment on 30th September 2015 the court made directions for the applicants to file their joint statement by 21st October 2015 and for the POR to file her report by 16th December 2015.

[5]  The applicants, with the consent of the POR applied for and were granted an extension of time in which to file and serve their statement. The joint statement of the applicants was served on the POR and filed with the court on 28th October 2015. The respondent was served with notice of the final hearing by email and by post on 10th November 2015. On 11th November 2015, the respondent confirmed receipt of the letter dated 10 November 2015.

[6]  The POR visited the twins and the applicants at their home on 1st December 2015. In conjunction with her report, the POR asked the applicants to obtain a letter from the doctor who carried out the procedure to confirm the date of the embryo transfer on 2nd June 2014. The statement from Watson Farley & Williams (Thailand) Ltd dated 17 December 2015 set out and confirmed their attempts to contact the doctor in connection with this request. The POR filed her report on 15th December 2015 and in it she recommended that parental orders be granted to the Applicants in respect of the twins.

[7]  The twins have been cared for by the applicants since they were born; for the first ten days of their lives the applicants visited the babies daily in hospital and after that they cared for them in Thailand until the children returned with the applicants to the United Kingdom on 22 March 2015 on British passports. They have been well cared for as the POR said in her report dated 15 December 2015; “Despite any reservations about the s.54 criteria, it is my welfare assessment that [M] and [F] are much loved and well cared for children, who demonstrated an attachment to both [P] and [B]. I fully support the current care arrangements and am hopeful that the court will find an appropriate way to resolve the children’s legal status.”

The Law 

[8]  At the outset the Court was reminded of the words of Sir James Munby, President of the Family Division in Re X [2015] 1 FLR 349 at [54] as being relevant and as providing support for making of parental orders in this case:

“Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X’s identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as “the psychological relationship of parent and child with all its far-reaching manifestations and consequences.” Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”

[9]  The status of the surrogacy in Thai Law: expert legal opinion. The court raised two issues at the (FPR 2010 Part 13) directions hearing on 30th September 2015; the issue of the legal status of surrogacy in Thailand as at the date treatment took place and subsequently, leading up to the birth of the twins, as the court was aware that surrogacy laws had been subject to changes. The applicants addressed this issue in their statement at paragraphs 29-38, and exhibited a notarised memorandum from a Miss Kulkanya Vorawanichar, a lawyer working for Watson Farley & Williams (Thailand) Ltd. The memorandum set out that at the time of the conception and of the birth of the children there were no laws directly relating to the practice of surrogacy in force, meaning that surrogacy was not illegal at the time in Thailand. To the best of Miss Vorawanichar’s knowledge there had been no judgment which had addressed the issue of surrogacy in the Thai Supreme court.

[10]  It was not until 30th July 2015, which was four months after the twins had left Thailand and were living in England with the applicants that the Protection of the children born by Assisted Reproductive Technology Act (ART Act), came into force in Thailand. Miss Vorawanichar explained that the ART Act forbids commercial surrogacy in Thailand and violation of this prohibition is punishable by up to 10 years’ imprisonment and a fine not exceeding THB (Baht) 200,000. Miss Vorawanichar went on to explain that the ART Act does not provide for what procedure may prevail in respect of surrogacy agreements entered into prior to the ART Act coming into force. She set out her legal opinion of the effect of the surrogacy ART Act on the validity of the surrogacy agreement entered into by the applicants in this case by considering s.56 of that ART Act; this provision relates to children born by surrogacy before the ART Act had come into force and there were two cases, which she was aware of at the time of writing, in which a single father had been able to obtain full parental rights over children born through surrogacy in Thailand pursuant to s.56 of the ART Act. In her opinion “Although in Thailand, court judgments of previous cases do not create binding precedents for other courts to follow, the courts in following cases are likely to interpret Section 56 broadly by not limiting it only to heterosexual couples (the commissioning husband and wife) who can obtain parental rights over the children born from surrogacy under Section 56.”

[11]  Based on the legal opinion evidence before me here is no reason for this court to conclude that the applicants entered into the agreement with the surrogate and the Thai agencies or clinic in anything other than good faith as the agreement was lawful in Thai law at the relevant time.

[12]  HFEA 2008 s 54(2) and (8). It remains for me to consider s 54(2) and (8) before making any parental orders relating to the applicants and F and M. The former (s54 (2)) concerns the status of the applicants’ relationship and the latter (s 54 (8)) the retrospective authorisation of payments made other than reasonable expenses.

[13]  Section 54 (1) of the HFEA sets out that; “On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination; (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and;(c) the conditions in subsections (2) to (8) are satisfied. The Cellmark DNA test, filed with the court, confirms the twins’ F and M’s biological connection to the first applicant. The eggs were donated and, as Mrs Odze reports, under the section of the welfare checklist headed ‘the particular needs of the children’ the applicants “also have photographs of the egg donor who has agreed to be contacted by the children should they desire to do so when they are older.”

[14]  The applicants have made considerable efforts, through their representatives in Thailand, to obtain documentary evidence from the clinic or from the treating physician concerning the creation of the embryos; as Miss Vorawanichar of Watson Farley Williams (Bangkok) confirmed in her letter that four separate attempts have been made to obtain this information and that the doctor’s assistant told her on 17th December 2015 that “[The doctor had] declined to sign the letter due to the current legal climate in Thailand in relation to commercial surrogacy.”

[15]  Enduring Family Relationship: s 54(2) (c). Section 54 (2) of the HFEA provides that the applicants must be “(a) husband and wife; (b) civil partners of each other, or; (c) two persons who are living as partners in an enduring family relationship.” It is the applicants’ case that they are two persons living as partners in an enduring family relationship. They set out in their joint statement at paragraphs 3-7 and at paragraphs 18-20, their background to their “journey to become parents”. They have been together since April 2014 and plan to marry in August 2017. Before meeting the 2nd applicant the 1st applicant had tried to become a father through surrogacy as a single parent; at present the legislation does not provide for parental orders to be made in the case of any application by a single person.

[16]  The HFEA does not define what an “enduring relationship” is and it was submitted on their behalf that the Court would wish to consider the nature of the applicants’ relationship having regard to the specific facts of this case as set out in their joint statement and in the POR’s assessment of the couple; that is the approach which I intend to take. It mirrors the approach taken in previous cases where parental orders have been made (of which more below) and the nature and structure of any family relationship must be one which is in, the greatest part, based on the facts of each specific case and family. The families in which children live and are brought up are increasingly diverse and often more fluid than in the past; the enactment of the HFEA 2008 came about in recognition of this change. I have been referred to the Parliamentary debates which took place at the time.

[17]  Counsel for the applicants made reference to the notes to the Family Court Practice 2015 (at page 374) which set out, in relation to the definition under the Adoption and Children Act 2002 (ACA 2002), that “To establish that a couple are ‘living as partners in an enduring family relationship’, there must first be an unambiguous intention to create and maintain family life and, second, a factual matrix consistent with that intention. Both matters are a question of fact and degree in each case. There is no requirement that both partners should reside in the same property (Re T&M Adoption [2011] 1 FLR 1487).”

[18]  Sir James Munby, President, considered the definition of “couple” pursuant to section 54(1) in Re Z [2015] EWFC 73; in his judgment he said (at [13]) that the HFEA 2008 had brought the definition of “couple” in line with the definition of “couple” in section 144(4) of the Adoption and Children Act (ACA) 2002; he said that since the Marriage (Same Sex Couples) Act 2013 came into force on 13th March 2014 the definition in both Acts now extends to married couples of the same sex. The ACA 2002 defined “couple” at s. 144(4) as follows; “In this Act, a couple means; (a) a married couple, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.”

[19]  There is limited reported case-law relating to the definition of an “enduring family relationship” under the HFEA 2008, and I accept the submission that it is helpful to consider other situations in which the Court has considered it to be clearly in the welfare interests of the children concerned to make parental orders against factual backgrounds to the status of the relationship of the applicants for the parental order which could be said to be more complicated than the relationship of the applicants in this case; the only real concern which can legitimately be raised in respect of their relationship, on the evidence before me, is the longevity or otherwise of their relationship which is presented by the word “enduring”. As the President observed in Re Z (No 1), approving the decision in A v P [2012] 2 FLR 14, the Court had previously made a parental order where one of the original applicants for the parental order was dead at the time the parental order was made on the basis that family life had been established on the facts of that case; in this case the applicants continue to live together, as a couple, and the children have, as a matter of fact, known no other family.

[20]  In Re X [2015] 1 FLR 349, the President made a parental order although the applicants had been separated for twelve months and the child had been living in two separate homes throughout; holding that s.54(2), in respect of the child’s ‘home’ being with the applicants, the statute should be read in a way that was compliant with the European Convention, saying at [68] that “It involves, after all, a lesser degree of reading down than Theis J was prepared to accept in A and Another v P and others [2001] EWHC 1738 (Fam), [2012] Fam 188 sub nom A v P (Surrogacy: Parental Order: Death of Applicant) [2012] 2 FLR 145. I add in this context a reference to Kroon and Others v The Netherlands (Application No 18535/91) [1994] ECHR 35, 19 EHRR 263, where the Strasbourg Court accepted that family life existed between two parents and their children even though the parents had never married, did not cohabit and lived in separate houses. There is no doubt, in my judgment, that there is family life within the meaning of Art 8 of the European Convention as between the commissioning parents and X.”

[21]  Although in this case it was submitted, on behalf of the applicants, that no “reading down” of the statute was required (pursuant to s.3(1) of the Human Rights Act 1998) and that a straight reading of the statute would enable the court to find that the applicants are in an enduring relationship on the facts of the case, any purposive reading of the statute regarding the family life which the applicants have clearly established with the children could only lead me to the conclusion that there is family life within the meaning of Art 8 of the ECHR.

[22]  In the case of Re Z (No 1) direct reference was made to the debates in Hansard on the subject of why the legislation (HFEA 2008) requires any application for parental order following a surrogacy arrangement to be made by a couple and not by a single applicant. In response to an amendment tabled by the Member for Oxford West and Abingdon (Hansard, col 246), to permit the making of a parental order in favour of one person, Dawn Primarolo, Minister of State, Department of Health, (cols 248-249) said; "Surrogacy is a complex area. I shall start by responding to the hon. Gentleman. As far as surrogacy is concerned, the mother who gives birth is the mother. Parental orders, like adoption orders, transfer parenthood after birth. In my view, there is a difference, and I will seek to explain why before asking him not to press the amendments. Under the 1990 Act, it is possible to make parental orders transferring parenthood only to married couples. The Bill extends the provisions to include civil partners and couples who are not in a civil partnership or married, but who are living as partners in an enduring relationship. A parental order is awarded by a court, subject to the report of the parental order reporter, who visits the parties concerned and prepares a report on whether the provisions of the law are met – for example, whether the woman who carried the child has freely given her unconditional consent.”

[23]  Dr Primarolo continued; “Surrogacy arrangements are not in themselves enforceable in law, although, when making decisions about whether or not to grant a parental order, the courts will take into account factors such as – as we would expect – where it would be in the best interests of the child to be brought up. The Bill does not extend parental orders to single people. As the hon. Gentleman said, the amendments seek to change that with regard to surrogacy. It is interesting to note that surrogacy has rarely featured in the scrutiny and the debates that have taken place on the review of the 1990 Act and the Bill. Arguments for the change to access to parental orders, which the amendments seek, have surfaced only recently.”

[24]  In reference to the potential for the complexities of human emotional dynamics and the extent of the physical commitment (of the surrogate) she said;

“Before I answer the specific points, it might be useful to recap by saying that surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman. I would say to the hon. gentleman that there is a difference. His point was that single people are able to adopt and to receive IVF, so why can they not get a parental order over surrogacy? The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her child – there is not a direct parallel. Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. 
That is why we have made the arrangements that we have. I am grateful to the hon. gentleman for raising the debate, but I say to him that in the Government's view, discussions about surrogacy should be dealt with elsewhere and not by amending the Bill, because the issues involved are complex and the debate has not been properly considered due to its late emergence as an issue in the Bill."

[25]  It was pointed out to this court that, following the example anticipated in the parliamentary debate the applicants went through the process of treatment and conception by the surrogate as a couple, remained a couple and throughout the respondent’s pregnancy. They have shared the parenting of the children together, as a couple, and family life has been established between the children and the applicants.

[26]  In the debate which followed on from the discussion (cited in Re Z (No 1)) Mark Simmonds MP tried to introduce a further amendment that there should be a requirement to s.54(4) that the definition of ‘enduring family relationship’ required applicants to have been together for 12 months before making the application. Mr Simmonds then sought leave to withdraw the amendment and Parliament agreed that it is for the court to determine the factual issue of what is an ‘enduring family relationship’ on the facts of each case.

[27]  Mark Simmonds said:

“I beg to move amendment No. 177, in clause 54, page 47, line 13, after ‘wife’, insert ‘who, in the case of couples who are neither married nor in a civil partnership, must have been in a relationship for a minimum period of twelve months. The amendment would insert a provision whereby couples who fall within the category in the clause but who are not married or in a civil partnership must have been in a prior relationship, and would stipulate a minimum time period for that relationship. Some hon. Members may feel that it is nit-picking, but I draw their attention to the differences between various provisions of clause 54. Subsection (2) refers to an “enduring family relationship”, but subsection (11), the retrospective provision, makes no reference to it. Is that a drafting oversight, or is there a specific reason why an enduring family relationship is not relevant for those trying to obtain retrospective parental orders under the Bill that they could not obtain under the 1990 Act?
Another point that I wish to make—I hope to catch your eye if we get to a stand part debate, Mr. Hood—is that greater clarification seems to be needed of what an enduring family relationship is. As has been said, there is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed. I am trying to establish why there is a difference between subsections of the clause, and particularly why subsection (11) does not state that an enduring relationship is a fundamental requirement for getting a parental order.”

[28]  The Minister of State responded:

“I can see that you are following what the hon. Gentleman says as closely as I am, Mr. Hood, as we go delicately through these important issues. Most of us were listening intently. [Interruption.] I was. It is very important, and I want to understand exactly what the hon. Gentleman is saying, although the tone of my voice made me sound as though I did not mean it. Clause 54 relates to how parenthood may be transferred by a court order when a woman has carried a child as a surrogate on behalf of a couple who cannot have children themselves. Under the 1990 Act, parental orders transferring parenthood can only be made for married couples. As I have mentioned, the Bill extends the provision to include civil partners and couples who are not married or in a civil partnership but who live as partners in an enduring family relationship, which is what the hon. Gentleman’s questions deal with. When the 1990 Act was introduced, it included a provision allowing married couples who had had a child through surrogacy before the Act came into force to apply retrospectively for a parental order. The Bill mirrors that by including a similar provision for people who were not entitled to apply for a parental order before because they were not married. They must apply within six months of clause 54 coming into force.
The hon. Gentleman’s amendment would add that a couple applying retrospectively must have been in a relationship for a minimum of 12 months if they are not married or in a civil partnership. Surrogacy can be a route that couples look to when they are unable to have children themselves, and I do not believe—I am sure that members of the Committee do not either—that couples would enter into it lightly. The process of a couple deciding that they are both happy with such an arrangement is complex, and they have to find a surrogate who would be suitable to carry their child. That can take a number of years, so in most cases, the couple will have gone through the process together. In addition, when the court is considering the application, it would have to be satisfied that the couple were in an enduring family relationship for the parental order to be granted. As part of that consideration, it is more than likely that the court will consider the length of the couple’s relationship as well as their commitment to each other. The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made.
There is no reference to this enduring family relationship in subsection (11), to which the hon. Gentleman referred, because to make an application to the court under section 54, if the couple are not married or in a civil partnership, they must be in an enduring family relationship. Therefore, it is not necessary for it to be in the legislation in the way that the hon. Gentleman is suggesting. I am sure that the hon. Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts than by Parliament seeking to put in place arbitrary time periods or definitions, however well-meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child.”

[29]  It is clear, therefore, that parliament intended that this court is to decide whether a relationship is, or is not, an enduring family relationship. In this case the applicants began their relationship in April 2014 when the first applicant P had already entered into a surrogacy agreement with the respondent. It is their case that their relationship was based on their shared desire and commitment to becoming parents together; but the fact that P had already entered into a surrogacy agreement and that parental orders are only available to couples raised questions, about their commitment to each other and to any children born as a result of an agreement initiated and entered into by P on his own, for the POR which were entirely understandable. P had had a previous civil partnership from 2007 until its dissolution on 25 September 2012 and he explained to the POR (during her visit to the family at home) that he wanted children whilst his previous partner did not; this was something that he had in common with B. B, too, had wanted children and ended his previous relationship as his partner did not see himself as a parent.

[30]  It is the evidence of the applicants that when they met in April 2014 they had discovered a shared commitment to becoming parents through surrogacy and had then fallen in love with each other. B moved in to live with P in June 2014 and they have shared their home together since. Both applicants travelled to Thailand during the course of the respondent’s pregnancy to support her and I have seen details of their joint and separate visits. It is noteworthy that the applicants were in a relationship prior to the treatment leading to the children’s conception (or the creation of the embryos) and that relationship then continued during the respondent’s pregnancy. When the children were born the applicants had been in a relationship for ten months and by the time they made the applications to the court for parental orders they had been together as a couple for fourteen months and living together for a year.

[31]  The applicants stayed together in Thailand for three months after the birth of the children and since 22 March 2015 they have been living as a family at their home in England. They plan to marry in August 2017 and explained to me that they have to arrange it well in advance to ensure that all the family members and friends they want to invite can travel to Scotland for the wedding. In her report the POR assessed their relationship as follows: “it would certainly appear that [P] and [B] are in a loving relationship; for example they related to each other in an emotionally attuned, affectionate way. It was clear they had a shared knowledge of each other’s background and family relationships, and I observed warmth between them.” Mrs Odze went on to say about the surrogacy arrangement that; “Whilst it seems this arrangement was led by [P], the reality of the situation appears to be that [B] actively supported the pregnancy and has cared for the children since their birth.”

[32]  By the time of the hearing they had been in a relationship for nearly two years, had been through the treatment and conception with the respondent together and supported the respondent through pregnancy together, they have supported each other throughout her pregnancy and they have cared for F and M together as a family since the day they were born. Parliament pointedly and specifically decided not to define an enduring family relationship in terms of its longevity (as can be seen from the excerpts from Hansard above) and to leave it to the High Court to test whether a couple are in an enduring family relationship. On the facts of this case I conclude that P and B are a couple and part of a family and that theirs is an enduring family relationship.

[33]  In respect of the other requirements of s54 of HFEA, the applicants have complied with s.54 (3) (applicants must apply for the order during the period of 6 months beginning with the day on which the child is born) as the twins were born on 13th January 2015 and the applications for parental orders are dated 1st June 2015. They have complied with s.54 (4) at the time of the application and the making of the order (a) the child’s home must be with the applicants, and (b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man as they have cared for F and M since birth and the children’s home has always and exclusively been with the applicants. The court has been aware since the first appointment on 30th September 2015 that the applicants seek to rely upon P’s domicile of origin in the United Kingdom. Both of the applicants are over 18 years of age and meet the requirement of s.54 (5) (at the time of the making of the order both the applicants must have attained the age of 18) and I have seen evidence confirming their dates of birth.

[34]  Under s.54(6) the court must be satisfied that the woman who carried the child has freely and with full understanding of what is involved, agreed unconditionally to the making of the (parental) order. The respondent is an unmarried surrogate who lives in Thailand and who had signed a surrogacy agreement (a copy of which has been filed with the court) which is in Thai and in English. B’s name was added to the agreement at a later date with the respondent’s consent. The applicants’ joint statement sets out how they have sought to ensure that she was able to provide informed consent by providing for forms to be translated into Thai from English and providing for all forms to be signed in the presence of a notary public. On the 22nd January 2015 the respondent signed a statutory declaration in respect of the children and provided a consent to travel letter for the children which is dated 29th January 2015. When the children travelled to their home in the UK with the applicants she accompanied them to the airport.

[35]  In respect of the parental order proceedings the respondent has completed the Form A101A agreeing to the making of the parental order in favour of the applicants in respect of F and M and both consents are dated 22nd May 2015 which is more than six weeks after the children’s birth (as required by FPR 2010 r 13.11). The forms were translated into Thai and English and signed by the respondent in the presence of Miss Vorawanichar and a notary public, Chananya Rattanacharaoen of Watson Farley & Williams (Thailand) Ltd. While it is of some concern that the document was signed and notarised by the solicitors acting for the applicants in this case and not by an independent notary as it should have been, I am reassured by the evidence of the applicants themselves who have appeared, on the evidence before me, to have acted scrupulously in respect of their dealing with the respondent. The respondent’s notarized consent to the making of parental orders in respect of F and M is dated 16 June 2015; the respondent had confirmed that she consented to the making of the parental order to the applicants and that she did not seek to give evidence.

[36]  Section 54(8) deals with payments made to the surrogate; commercial surrogacy is not lawful in the United Kingdom. Under s 54 (8) the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of (a) the making of the order; (b) any agreement required by subsection (6); (c) the handing over of the child to the applicants; or (d) the making of arrangements with a view to the making of the order, unless authorised by the court. Commercial surrogacy was not illegal in Thailand at the time the agreement was entered into and there were a number of payments made by the applicants in this case.

[37]  The applicants set those payments out in their joint statement and exhibited to it details of the payments they had made; this included an email from the treating doctor dated 31 December 2013) setting out the breakdown price for the cost of surrogacy. The total sum paid to the ALL IVF clinic was 800,000 Thai Baht which is equivalent to approximately £14,724.56 (at the exchange rate at the time their statement was prepared) or £14,776.51 at exchange rate on 15 February 2014. The email set out the “surrogate fee” which included a 700,000 Thai Baht fee and a further 100,000 Thai Baht delivery fee; the applicants explained that the respondent received 400,000 Thai Baht (equivalent to approximately £7362.28 at the exchange rate at the time of writing their statement or £7388.25 as at 15 February 2014) to compensate her for the surrogacy arrangement, loss of earnings during and after the pregnancy when she was recuperating and recovering from the C-section. The respondent was paid 27,170 Thai Baht (approximately £500.00 at the exchange rate when their statement was prepared and £501.85 as at 15 February 2014) which was to cover the cost of miscellaneous expenses such as vitamins, prescriptions and taxis to travel to ante-natal and associated appointments. The applicants gave the respondent a gift of 35,000 Thai Baht (approximately £641.71 at the time of the payment in March 2015) to thank her for enabling them to have their family. The sum received by the respondent was approximately 462,000 Thai Baht, in total, which was equivalent to approximately £8,533.43 at the exchange rate on 15 February 2014.

[38]  I shall apply the relevant principles as developed in case law since the coming into force of the HFEA 2008 and Guidance in 2010. The cases involving Thai surrogacy have not all been reported as they have not raised a particular issue of concern or law, however the legal principles remain the same regardless of the country where a commercial surrogacy was entered into. On behalf of the applicants I was shown a case referred to in the Thai media in a report dated 23rd October 2015 in which the surrogate had said she was paid 460,000 Baht which is similar to the sum paid to the respondent in this case. I accept that the applicants have used their best endeavours to try to provide as much information as possible concerning payments made to the Clinic and to the respondent in this case; and I am reminded that these courts have authorised payments in other cases where far less evidence has been available to the court. In A&B and X&Y and C&D [2015] EWHC 2080 (Fam) concerning treatments in India, parental orders were made in respect of twin girls where it was found that payments of around $25,870 (£16,500) had been made to the clinic and where the applicants had made no direct payments to the surrogate mother or her husband and had no details as to precisely what payments were made to them by the Clinic.

[39]  The court must also consider the payments made to commercial surrogacy agencies operating within the law of foreign jurisdictions as, following the decisions of P-M [2013] EWHC 2328 (Fam), Re C [2013] EWHC 2408 (Fam) and Re W [2013] EWHC 3570, payments to agencies are self-evidently not reasonable expenses incurred by or on behalf of the surrogate so that applicants must set out payments made to agencies and documentary proof of payments attached; the applicants in this case have done so. Payments made to an egg donor and for medical treatment are excluded from consideration by the court, following Re C, as payments which are not captured by s54 (8); but it assists the court to have these payments included, as the applicants have done in this case, as such payments form part of the expenses “reasonably incurred”.

[40]  In this, as in all surrogacy cases, the welfare of the children is no longer simply one consideration among many, but rather the consideration which should override all others. The approach which will be taken by this court was set out by Mr Justice Hedley in Re L (a child) [2010] EWHC 1738 (Fam) at [12]. “I think it important to emphasise that, notwithstanding the paramountcy of welfare, the court should continue carefully to scrutinise applications for authorisation under Section 54(8) with a view to policing the public policy matters identified in Re S (supra) and that it should be known that that will be so.”

[41]  While it remains necessary for the court to consider matters of public policy set out above in considering whether to exercise the power of authorisation under s54(8) HFEA 2008, the court will only refuse a parental order in the “clearest case of the abuse of public policy”. The approach developed by Hedley J has subsequently been endorsed by Theis J in A v P [2011] EWHC 1738 (Fam) and by Sir Nicholas Wall, the President of the Family Division, in Re X (children) [2011] EWHC 3147 (Fam). To paraphrase Hedley J, the court must be careful not to be involved in anything that looks like a payment for buying children overseas. Such arrangements have been ruled out by Parliament and the court cannot be party to any arrangements which effectively allow them. The court must be careful and ensure that sums of money which might look modest by the UK standards are not in fact of so substantial amounts (particularly in the country where the surrogate lives) that they would overbear the will of a surrogate.

[42]  The statement of the applicants has dealt with these issues and set out fully and frankly the sums paid, and, to the best of their ability has identified payments made to the respondent at least some of which must have been expenses reasonably incurred as a result of the pregnancy. The respondent lost income and would have had expenses for maternity clothing and other necessities. The amounts paid will have included expenses reasonably incurred and those expenses were not set out in detail but it is safe to assume that the respondent had such expenses. I keep in mind and follow, as this court has previously, the judgment of Theis J setting out the legal principles that the court must bring to bear when exercising its discretion as to whether the payments should be authorised as set out by the President in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) at [75].

[43]  I accept that the applicants entered into the agreement in good faith believing it to be a standard agreement in Thailand (at the time) and that the fees were not negotiable and in accordance with what they described as “the industry standard” for Thai surrogacy agreements. Of the £7,362.28 received by the respondent through the clinic some monies will have gone to cover the respondent’s loss of earnings and some to cover additional expenses not paid for by the 27,170 Thai Baht from the applicants in February 2014; however, the applicants did not provide evidence which broke the overall figure down and the clinic had referred to payment to the surrogate by way of compensation in addition to loss of earnings during and after pregnancy.

[44]  There is no evidence before me to suggest that the amount received by the respondent was so great as to have suborned her will and I accept that she was supported by her family and friends in her decision to be a surrogate. She was single at the time the agreement was entered into, and during the pregnancy and birth. The respondent was supported by the clinic and the applicants, who ensured that all documents were translated for her and fully explained before she signed them and I accept their evidence that they were “very careful to ensure that at every step of the surrogacy process the Respondent understood and consented to the surrogacy and her waiver of parental rights.”

[45]  The additional payment that the respondent received as a gift from the applicants was paid to her two months after the children were born. I discount that payment as a gift made in gratitude after the surrogacy agreement had come to an end. I am unable to identify with any precision the amount the respondent received “other than for expenses reasonably incurred” but given that a proportion was for loss of earnings I do not have difficulty in authorising the element of the payment which was made by way of compensation.

[46]  There is no evidence before me that the applicants have been anything other than open, frank and transparent about their dealings with the clinic and with the respondent in putting their evidence before this court throughout these proceedings. It is clear to me that the applicants entered into the agreement in Thailand in good faith and that the payments they made to the clinic will have included an element of profit. The applicants were not in a position to negotiate the fees paid to the clinic, which as they said were standard fees for commercial surrogacy in Thailand at that time, and I will authorise the element of payments to the clinic which would have been profit as well as medical procedures, treatment and administrative costs.

[47]  I authorise the payments as following the principles set out above and, applying the welfare considerations as set out in s.1 of the 2002 Adoption and Children Act, it is clearly in F and M’s welfare interests for the court to make s.54 Parental Orders. That is the recommendation of the POR whose report dated 15 December 2015 I have read and already made reference to. The applicants have established a family life with the children under Article 8(1) of the ECHR. Article 8 of the United Nations Convention on the Rights of the Child directly applies to this case making parental orders the only and most appropriate means to recognise in law the facts of these children’s lives now and throughout their lives; the applicants have a relationship with the children as their parents (P is their biological as well as their physiological and emotional parent) and it is necessary to make the parental orders to give legal effect and recognition to the children’s identities.

[48]  This is my judgement.

Family Law

journal

"the principal (monthly) periodical dealing with contemporary issues" Sir Mark Potter P

More Info from £49.00
Available in Family Law Online
Emergency Remedies in the Family Courts

Emergency Remedies in the Family Courts

"A very good tool for the busy family lawyer" Solicitors Journal

Available in Family Law Online
Subscribe to our newsletters