reforming surrogacy law

The judgment of A v B and Others, decided last week, demonstrates the complex factual circumstances that the court can be left to unpick in relation to surrogacy, donated gametes and arrangements for children’s care.

Background to the case

The approved judgment that has been published relates to just one hearing of several concerning two children, both born through surrogacy.  The issues in contention in this hearing related to applications made by a woman – A – in relation to a child – Y.

A and B had previously decided to have a child together in a co-parenting arrangement.  Following unsuccessful attempts for A to become pregnant through IVF, the parties created embryos using donated eggs in the US and A gave birth to a child after a successful transfer of one embryo. 

A and B are the legal parents of the child – X – and (despite some other applications pertaining to X) there was no dispute in relation to X in this hearing.

At the point of treatment, B sent a letter to the clinic and A stating that the embryos were under his ‘legal care’ and that he consented to one being transferred to A for them to both become legal parents. 

After the birth of X, the relationship between A and B deteriorated and talks of them having a second child together came to an end.  Following this, B, as an individual, proceeded to enter a surrogacy arrangement with Mrs G using donated eggs, which resulted in a miscarriage.  A later embryo transfer took place, using one of the remaining embryos from the original treatment, and Mrs G gave birth to a child – Y. 

When A became aware that B had engaged a surrogate for another child, both parties worked with a mediator and counsellor to discuss how best to manage the introduction of their child, X, to a new sibling.  At this stage, A appeared to accept that B had legal ownership of the embryos and did not make any comments suggesting she wanted to be involved as a parent of Y.

However, shortly before the birth of Y, A’s solicitors contacted B’s solicitors informing them that she wanted to have a full relationship with the child as it’s mother.  Her basis for wanting to be recognised as the child’s mother was to benefit both X and Y, in ensuring Y had a ‘full loving relationship with two parents, just as X does’ (para 28). 

In the meantime, B had made an application for a parental order under s54A Human Fertilisation and Embryology Act 2008 as a single applicant, and Y had lived with B since birth. 

In amongst other applications and hearings, the present hearing concerned two particular issues:

• A had made a parental order application, which she was seeking to withdraw on the basis that Mr and Mrs G (the surrogate and her spouse) would not consent; and
• A was applying for leave under s10(9) Children Act 1989 to make an application for a ‘lives with’ child arrangements order in respect of Y.

The parental order application

A had originally submitted a parental order application to be recognised as Y’s legal parent. 

As discussed in an earlier post, a parental order transfers legal parenthood from the surrogate (and her spouse, if applicable) to the intended parents, being the parties who intend to act as the child’s parents and who, in effect, commissioned the surrogate’s pregnancy.  In the current case, it is questionable as to whether A could be regarded as having been an intended parent to Y, given that she was unaware of the surrogacy arrangement until the pregnancy was already confirmed and had explicitly communicated to B that she would not be a parent to the resulting child.

For a parental order to be granted, there are various requirements that must be satisfied under the legislation. Although the courts have liberally interpreted many of these requirements, to meet the best interests of the child and to accord with the Human Rights Act 1998, there were many requirements and practical hurdles that would have prevented a parental order being granted in the present circumstances.

In the course of this hearing, A wished to withdraw her parental order application on basis that the surrogate and her spouse would not consent to the order, as required under s54(6) Human Fertilisation and Embryology Act (HFE Act).  However, the other parties to the proceedings – Mr and Mrs G, B, and Y’s guardian – whilst approving of A’s request to withdraw her parental order application, wanted the withdrawal permitted on the basis that A did not meet various s54 requirements and that it would not be in the Y’s best interests for an order to be made.

In the judgment, Theis J highlighted various omissions in A’s submissions relating to the parental order, including the following:

• A was making a parental order application on her own behalf but would have been relying on B’s application (which had already been submitted). As the genetic parent, B could apply as a sole applicant under s54A HFE Act, which he had done.  The suggestion from A was for her to be joined to B’s application, but it was clear B would not consent to this.
• There was no consideration of how interpreting the legislation to allow A to be recognised as a legal parent under s54 HFE Act met the relevant legal standard for statutory interpretation.
• There was an attempt to rely on the European Convention on Human Rights, Article 8 right to private and family life, in arguing that a parental order should be granted.  However, there was no articulation of how Article 8 would be engaged, absent any family life between A and Y, and the lack of a genetic link meaning private life would not be invoked.

As such, whilst it was true that the surrogate and her spouse would not consent – thus preventing an order from being granted under s54(6) – this would be too simplistic a reason to document why the withdrawal of the application was permitted. 

As Theis J stated:

from Y’s perspective and his identity needs there should be clarity now of the very considerable hurdles A faces in proceeding with her parental order application, irrespective of the issue of consent. The welfare issues she outlined… are both powerful and compelling.

Para 82.

And later:

irrespective of the issue of consent, the application for a parental order on the facts of this case lacked both merit and legal foundation in key respects and I am satisfied that Y’s welfare needs are met by A being given leave to withdraw that application on this wider basis, not just limited to the issue of consent.

Para 84.

Therefore, it was held that the parental order application could be withdrawn – from the perspective of the welfare of the child, however, it was felt important that these hurdles were documented as the reason why.  This would prevent any assertion from A in the future that it was the conduct of the surrogate (in withholding consent) that prevented a legal relationship from being established.

Application for leave under s10(9) Children Act 1989

Even though withdrawing the application for a parental order, A was still hoping to build a relationship, in a parenting role, with Y.  As such, she was seeking leave to apply for a child arrangements order under s10(9) Children Act 1989. Being given leave to apply would have enabled her to apply for a s8 order, to request shared care of Y, including the ability to exercise parental responsibility.

Some individuals are automatically entitled to make an application under the Children Act, such as parents, guardians and step-parents.  If an individual is not an ‘entitled applicant’, they must first seek the permission of the court to make an application: A was seeking such permission to apply for a child arrangements order in respect of Y.

All other parties in the proceedings objected to A’s application for leave.

In considering whether to grant leave to apply, Theis J stated that there was the risk of indirect harm to the child, Y, in there being further delays in proceedings and continued litigation, which would impact on B as Y’s full time carer.  Further, it was stated that A was limited in her recognition of how Y’s conception differed from X’s, maintaining the view that she should be treated as Y’s mother.  Resultantly, it was viewed as:

a wholly unrealistic application that fails to have any regard for the reality of the position, any recognition of the difference in the circumstances of conception between the two children and their different legal status as between A and B.  

Para 87.

As such, the application was refused.

Conclusion

Although a case with a unique factual matrix, it highlights the difficulties that can arise when there is a mismatch between the expectations of parties and clear communication is lacking. 

A’s arguments were framed around ensuring Y had a similar upbringing and parentage to their genetic sibling, X. However, despite the genetic relatedness, the circumstances around the conception for Y and X were entirely different.  For X, both A and B were the planned parents from the point of treatment and A was also the gestational parent.  In relation to B, Y embarked on the pathway to parenthood, through surrogacy, as a single individual, and his application for a parental order under s54A HFE Act represents that. 

Concisely stated by Theis J, ‘whilst there can be little doubt the journey to parenthood has been difficult for both parties, it is clear the parental route for both these children is factually and legally different’ [79].  This judgment represents this, and ensures that Y’s parenthood reflects the reality of their conception and birth.