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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AB (Surrogacy: Consent), Re [2016] EWHC 2643 (Fam) (25 October 2016) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2016/2643.html Cite as: [2017] 2 FLR 217, [2016] EWHC 2643 (Fam) |
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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. 2016] EWHC 2643 ( Fam) | ||
FAMILY
COURT
Siting at Canterbury
Strand, London, WC2A 2LL |
||
2016 |
B e f o r e :
____________________
| C and D |
Applicants |
|
| - and - |
||
| E and F |
1st and 2nd Respondents | |
| - and - |
||
A and B (by their Guardian) |
3rd and 4th Respondents |
____________________
Mr Richard Jones (instructed by Wedlake Bell) for the 1st and 2nd
Respondents
(Both Counsel and Solicitor Acted Pro Bono)
Ms Deirdre Fottrell QC (instructed by Goodman Ray) for the 3rd and 4th
Respondents
Hearing date: 29 September
2016
____________________
Crown Copyright ©
Mrs Justice Theis DBE :
Introduction:
respondents,
E and F, are the surrogate mother and her husband.
surrogacy
arrangement in this jurisdiction.
respondents,
E and F, they have made it clear they seek to have no active involvement in the children's lives.
recent
hearing there was no issue that the court should make a child arrangements order, providing for the children to live with the applicants, C and D. This gave the applicants parental
responsibility
and orders were made that prevented the
respondents
being
able
to exercise any parental
responsibility
in
relation
to the children.
respect,
all the
relevant
criteria for the making of a parental order under section 54 Human Fertilisation and Embryology Act 2008 (HFEA) are met. The one that is not
relates
to the
respondents
consent.
Section 54 (6) provides that the court must be satisfied the
respondents
have 'freely, and with full understanding of what is involved, agreed unconditionally to the making of the [parental] order'. What is perhaps so unusual
about
this case is, as set out
above,
the
respondents
wish to take no part in the children's lives. Their rationale for
refusing
their
consent
is due to their own feelings of injustice, rather than what is in the children's best interests.
respondent's
consent
the application for a parental order comes to a juddering halt, to the very great distress of the applicants. The
result
is that these children are left in a legal limbo, where, contrary to what was agreed by the parties at the time of the arrangement, the
respondents
will
remain
their legal parents even though they are not biologically
related
to them and they expressly wish to play no part in the children's lives.
(1) Theyremain
living with the applicants, who are their biological and psychological parents, but not their legal parents. The child arrangements order, which gives the applicants parental
responsibility,
lasts until they are 18 years old.
(2) Therespondents,
who wish to play no part in the children's lives,
remain
the children's legal parents throughout their lives by virtue of ss 33 and 35 HFEA.
require
a parental order to be made, which would secure their legal
relationship
with the applicants in a lifelong way and extinguish the
respondents
legal status with the children, under the provisions of s 54 (6) HFEA 2008 if the
respondent's
consent
is not forthcoming the court cannot make a parental order.
recently
announced that
surrogacy
may be included in their next programme of law
reform
and have invited
responses
as to whether this should be an area that is included.
respondents
may change their mind, or that there may be some change in the current statutory
regime
governing parental orders.
recognise
that it is generally preferable to bring a
resolution
to proceedings, these are quite exceptional circumstances. In
Re
Z (No 2) [
2016]
EWHC
1191 the President of the
Family
Division adjourned the father's application for a parental order generally with liberty to
restore
and directed that any future proceedings should be
reserved
to the President of the
Family
Division (
Re
Z (No 2) ibid [20]). This was in the context of proceedings for a parental order in
relation
to Z, who is the biological son of the applicant father, carried to birth by a surrogate mother. The President determined that section 54 provides such an order can only be made on the application of 'two people'. He subsequently declared that sections 54 (1) and (2) HFEA are incompatible with the rights of the applicant and Z under article 14 ECHR taken in conjunction with Article 8 'insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple'.
request
for the applications for a parental order to be adjourned generally, with liberty to
restore
before me, if available. To do otherwise may prejudice the applicant's
ability
to commence a fresh application for a parental order to secure their legal status with the children in the future.
Relevant
background
reasons
and decided to embark on a
surrogacy
arrangement. They were put in touch with the
respondents
through a non-profit organisation in this jurisdiction that puts intended parents in touch with surrogates. The arrangement with this organisation allow only for the surrogate to select the intended parent they might be willing to act for from their profile. The applicants were contacted by E. She had been a surrogate before which had been a positive experience for her, which she hoped to
replicate
in an arrangement with the applicants.
recommended
three month 'getting to know' period it was agreed E should have two sessions with an obstetrician who had had some previous involvement with her. C and D attended one appointment with her, and F attended the second. The parties then decided to proceed with a written
surrogacy
arrangement and signed their agreement 3 months after they first met.
relationship
between the applicants and
respondents
broke down. It is not necessary for the court to investigate or determine the
reasons
for that change, save that the catalyst appears to have been an appointment around the 12 week scan when the consultant obstetrician expressed very
real
concerns
about
the health of E if the pregnancy continued. Further specialist advice was sought and the pregnancy did continue. E considers the applicants did not show sufficient concern for her wellbeing during this period. The applicants acknowledge in their statement the situation could have been handled better by them.
Regrettably
the difficulties continued, there was limited contact between them although E periodically updated C and D
about
the progress of the pregnancy.
able
go in the following day, but were, understandably, distressed by the circumstances.
relations
between the parties did not improve, although there
remained
some communication between them after the birth. The applicants continued to send E photos of the children until early in
2016,
when she stated she did not want to
receive
anything further.
2016.
There is no dispute between the parties that all of the
relevant
criteria are met, save for the issue of the
respondents
consent.
Mediation to help
resolve
the issue of
consent
was, sadly, not successful.
respondents
were for expenses
reasonably
incurred so do not
require
the authorisation of the court (s 54 (8)).
regret
at the breakdown in the
relationship
between the parties and acknowledge their part in that situation. They describe their utter joy at having a
family
and hope that E and F will change their minds to enable the children to have the legal status which they say truly
reflects
where they come from and who they are.
respondents
have each filed a statement where they set out their account of the background and their
reasons
for not agreeing to the court making a parental order. Their
reasons
include highlighting how E felt so unsupported when the
relationship
between the parties broke down, to increase awareness and emphasise the need for intended parents and surrogates to work co-operatively and to support and show compassion to the surrogate. F feels as he agreed to support E in this arrangement, he should support her decision not to agree to the making of a parental order. He also feels by not agreeing it ensures what has happened is not forgotten. Both
respondents
have said in their statements they would not object to an adoption order, as F says he would not want the children's lives to be left in limbo.
reporter
has filed an extraordinarily perceptive
report.
In her well structured document she has carefully analysed the difficult issues in this case. She
recognises
the problems there have been in the
relationship
between the parties, the emotional journey the applicants have undertaken to become parents due to the cruel circumstances of the medical diagnosis which led them towards the
surrogacy
arrangement with the
respondents.
In her analysis, whilst understanding the initial mutual enthusiasm of the parties, she considered they did not
really
know each other before embarking on this arrangement. This, she considered, became increasingly obvious when difficulties emerged.
reporter
considered there was some initial hope that agreement to the applications may be
reached
the
respondents
statements were
resolute
in their
refusal
to agree to the parental order. In her view she considers E's opposition to the parental orders is to demonstrate and have
recognised
her sense of grievance. Whilst the parental order
reporter
recognises
E's position she hopes E will be
able
to
reflect
on this, due to the life-long consequences for the children.
Discussion
surrogacy
arrangement,
recognising
the biological connection of the applicants as intended parents of the child. Whilst the
respondents
have indicated they would not object to an adoption order being made that does not
reflect
the
reality,
these children are the biological children of the applicants. An adoption order treats the children as if they were the children of the applicants, which they already are.
AB
v CD [2015] EWFC 12 where I set out the differences between the two orders as follows at [70]:
'(3) …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 notrequire
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 afamily
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 thereality
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 beresolved,
which could be the case if an adoption order was made in these situations.
referred
to in a number of cases adoption orders in these circumstances is inappropriate as, like the applicants in this case, they would be seeking to adopt their own children (see In
Re
A [2015]
EWHC
2602 (
Fam)
[71]).
Conclusion
able
to
rediscover
what led her to undertake such a selfless role and see the situation from the view point of these young children. From the perspective of these children's lifelong emotional and psychological welfare parental orders are the only orders that accurately and properly
reflect the children's identity as surrogate born children.