Summary of the law on surrogacy

The commissioning parents can apply for a parental order under section 54 of HFEA 2008 which will provide that the child is to be treated as their child. A court may only make a parental order if all of the requirements of section 54(1)-(8) HFEA 2008 are met. Section 54 reads:

54  Parental orders

• 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:

– 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
– the gametes of at least one of the applicants were used to bring about the creation of the embryo
– the conditions in subsections (2) to (8) are satisfied.

•  The applicants must be:

– husband and wife
– civil partners of each other
– two persons who are living as partners in an enduring family – relationship and are not within prohibited degrees of relationship in relation to each other.

• Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

• At the time of the application and the making of the order:

– the child’s home must be with the applicants
– either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

• At the time of the making of the order both the applicants must have attained the age of 18.

• The court must be satisfied that both:

– the woman who carried the child
– any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43), have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

• Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child’s birth.

• 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:

– the making of the order
– any agreement required by subsection (6)
– the handing over of the child to the applicants
– the making of arrangements with a view to the making of the order, unless authorised by the court.

•  For the purposes of an application under this section:

– in relation to England and Wales the “court” means the High Court or the Family Court and proceedings on the application are to be “family proceedings” for the purposes of the Children Act 1989
– in relation to Scotland, “the court” means the Court of Session or the Sheriff Court of the Sheriffdom within which the child is
– in relation to Northern Ireland, “the court” means the High Court or any County Court within whose division the child is.

• Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

• An application which:

– relates to a child born before the coming into force of this section
– is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife, may be made within the period of six months beginning with the day on which this section comes into force.

If a parental order cannot be made, the commissioning parents could become the parents by adopting the child.

If a surrogate mother refuses to hand a child over after the birth, the commissioning parents have few remedies. Surrogacy contracts are unenforceable in law pursuant to section 1A of the Surrogacy Arrangements Act 1985. Surrogate parents could apply for a child arrangements order asking that the child live with them but the courts have shown a reluctance to intervene once a child has bonded with the surrogate mother. This can be illustrated by the case of Re T (a child) (surrogacy: residence) [2011] All England Reports (D) (7) (Jan). In that case Mr and Mrs W had been unable to have a child so sought a surrogate mother. They came into contact with a mother, and negotiations were made to impregnate her with Mr W’s sperm. A pregnancy followed and in July 2010 a baby girl (T) was born, but the mother then refused to hand the child over. The judge concerned referred to the woman who gave birth to the child as the legal mother, and further concluded that T should stay with her mother as she had “genuinely changed her mind” about the surrogacy, the child had already formed an attachment with her and it was in T’s best interests. The judge noted that cases like these are hugely difficult for all involved, as the “natural process of carrying and giving birth to a baby creates an attachment which may be so strong that the surrogate mother finds herself unable to give up the child. Such cases call for careful and sensitive handling by the law”.

Section 54(8) of HFEA 2008 provides that no money or benefit, other than for expenses reasonably incurred, can be given or received in relation to a surrogacy, unless such payment had been authorised by the court. This issue was looked at in the case of Re: D and L (Surrogacy) 2012 EWHC 2631 (Fam). This case concerned an application for a parental order made by a male couple who were to be recognised and treated as being civil partners. They had opted to become parents through surrogacy using the services of a clinic in India. The applicant selected an anonymous egg donor and agreed that the first applicant would be the genetic father of the children. Twins were born and the applicants took custody of them two days after birth. The applicants were able to apply for passports for the twins and flew back to the UK.

They then awaited the document with the surrogate’s consent which was required six weeks after the birth of the twins. No consent was ever forthcoming and an enquiry agent had been unable to track down the mother.

It was held that the court would dispense with the need to obtain the surrogate mother’s consent on the basis that the children’s welfare was the paramount consideration of the court. It was important, however, that the applicants had taken all reasonable steps to locate her.

The payment to the surrogate mother was beyond the reasonable expenses permitted by section 54 of HFEA 2008 but the court was under a duty to place the welfare of the children first. Accordingly, the payments would be authorised retrospectively.

Similarly, in an earlier case of Re X and Y (Children) 2011 EWHC 3147 (Fam) the same issue arose about excessive payments. This case involved Mr and Mrs A who, after a number of years of failed IVF treatment, made surrogacy agreements with two women in India who had been contacted via a company at a fertility clinic there. In the agreements both women renounced any legal or parental rights in respect of the children. Both women fell pregnant and, following birth, X, a boy and Y, a girl, were looked after by Mr and Mrs A. Mr A was the children’s biological mother, and their biological mother was an anonymous donor. After the births both mothers signed consent forms confirming the births, receipt of payment and consenting to their removal from India.

Mr and Mrs A applied for parental orders in the UK. The President considered the applicable law under section 54(8) of HFEA 2008 and the Human Fertilisation and Embryology (parental orders) Regulations 2010 (SI 2010/985). The President noted that the children’s welfare throughout their lives is the paramount consideration.

The parents accepted that their payments had gone beyond reasonable expenses but that they had acted in good faith and the payments were not so disproportionate that the granting of parental orders  would be an affront to public policy. They therefore sought the authorisation of their payments.

On behalf of the children it was also argued that the payments should be retrospectively authorised and that the children’s welfare throughout their lives required the making of the orders.

The judge held that the critical issues were whether:

1. Payments made by Mr and Mrs A fell foul of section 54(8)
2. Retrospective authorisation of any payments was required
3. The paramount consideration of the children’s welfare was engaged in decisions concerning the retrospective authorisation of payments.

The judge found that Mr and Mrs A were genuine and the payments were not disproportionate and made parental orders in their favour. The President remarked that it was almost impossible to imagine a set of circumstances in which by the time the case came to court the welfare of the child would not be gravely compromised by a refusal to make an order.

In the cases of Re P-M [2013] EWHC 2328 and Re C [2013] EWHC 2328 Justice Theis reconsidered the effect of section 54(8) and concluded that any payments made by the applicants in consideration of the matters referred to in that section required authorisation by the court. Accordingly, to the extent that a surrogate agency is involved in “the making of arrangements with a view to the making of the order” any payments made to the agency by the applicants, which are not attributable to the Agency’s reasonable expenses, are captured by section 54(8). Re C specifically confirmed that payments to the egg donor, or for the purposes of medical treatment, are not activities captured by the wording of section 54(8) and therefore do not require authorisation.

In terms of international surrogacy, the main countries to which UK families travel for the purposes of surrogacy are certain States in the USA, India, Ukraine and less often Thailand. In each of these countries commercial surrogacy is permitted and there are legal mechanisms in place to realign legal parenthood following the birth of the children. In all of these countries the commercial surrogacy contract is enforceable. This of course goes against our public policy which underpins our legislation. This issue was of course considered in the Re X and Y case mentioned above.

Therefore it can be seen that the area of surrogacy is fraught with pitfalls and it is important that legal advice is taken at an early stage. It is particularly important if the couple plan to involve a surrogate overseas.