reforming surrogacy law

In a judgment reported last week, Sir Andrew Macfarlane, the President of the Family Division, had to determine whether a parental order could be granted in favour of intended parents in circumstances where the surrogate was not able to be identified so as to provide consent. The case raises important points in relation to the requirement for consent, the reliability of evidence, and again, the risks associated with international surrogacy arrangements.

The background

The intended parents entered a surrogacy arrangement with a clinic in Nigeria after having fertility difficulties. The intended father’s gametes had been used for the treatment at the Nigerian Clinic, meaning he was the genetic father. Although it was not entirely clear based on the evidence provided, it is believed that the surrogate’s eggs were used to form the embryo, thus meaning the surrogate is both the genetic and gestational parent.

The key issue in this case was that the surrogate remained anonymous throughout the conception, pregnancy and birth of the child. The intended parents were never informed of her identity, and the surrogate kept her face covered during scans and appointments that the intended parents remotely attended. This anonymity was retained even though the intended parents were present for the child’s birth.

The intended parents provided information on why they thought an anonymous surrogacy arrangement would be preferable, stating they believed it would:

‘remove all the problems people face when they do surrogacy and the stigma about it. We want safety, protection, security and peace of mind. We didn’t want unnecessary involvement and attachment; we just want to sign the contract without owing anybody obligation’. (para 14)

Ultimately, however, the anonymous nature of the arrangement created much legal uncertainty when a parental order was sought.

The s 54 criteria

In order for the court to grant a parental order, the requirements contained within s 54 Human Fertilisation and Embryology Act 2008 must be satisfied. Many of the criteria that must be satisfied in order for a parental order to be granted were unproblematic in the case. However, there were two requirements that required closer examination by the court.

First, s54 (8) stipulates that no payments beyond reasonable expenses can have been made to the surrogate, unless authorised by the court. The issue relating to this requirement stemmed from a lack of clarity in the evidence provided as to how much the surrogate had been paid. Accounts by the intended parents and the clinic varied, although it seems that no more than £4,000 had been paid to the clinic – it was not confirmed as to how much of this was paid to the surrogate.

Despite this uncertainty, Sir Macfalane was willing to authorise any payments beyond reasonable expenses that had been made on the basis that the child was ‘well settled with the applicants and there is absolutely no prospect of returning her to the care of any other person’ [7]. This decision aligns with previous cases whereby the court has been willing to authorise payments to ensure the child’s best interests are met through the attribution of legal parenthood to the intended parents.

Second, and the primary focus of the judgment, S 54(6) states that the surrogate, as the legal mother of the child, must unconditionally agree to the parental order. Unlike other s 54 requirements that have been deviated from in order to secure the welfare of the child, the necessity for consent is a hard-line requirement in the legislation. However, it is subject to s 54(7) which states that the requirement can be dispensed with if the person ‘cannot be found or is incapable of giving agreement’. A case last year, and examined in an earlier post, considered circumstances where the surrogate was unable to provide consent. This case, however, invoked an examination of s 54(7) due to the anonymity of the surrogate meaning she could not be found.

The proceedings

There had been four earlier directions from the High Court for further steps to be taken, and evidence provided, by the intended parents. First, they were asked to file a statement outlining the steps they had taken to identify the surrogate: the only response received was that the surrogate had been anonymous. The intended parents were then asked to provide further documents, which resulted in paperwork referring to the ‘possible’ surrogate, although their identity remained unconfirmed. Although a consent form was included in the documentation received at this time, the surrogate’s signature was not completed. There were a further two stages of requesting documentation before the present case, in which a determination was able to be made.

During these proceedings, the Parental Order Reporter had been unable to recommend a parental order owing to the lack of information provided in relation to the surrogacy arrangement, and the identity of the surrogate. However, eventually a surrogacy arrangement was provided by the Clinic: in the space for the surrogate’s signature, initials were provided which coincided with earlier documents, and the dates aligned with the payments that had been made. As such, the Parental Order Reporter was satisfied that a parental order should be made, on the basis of it:

‘being in A’s best interests and being better for A than simply leaving the present position which is that Mr H may have parental responsibility for A from being named as ‘father’ on the Nigerian birth certificate, but Mrs H does not have parental responsibility or recognition of parental status.’ (para 17).

The decision

Based on the evidence provided, the court was satisfied that a surrogacy arrangement had taken place, but that the prospect of finding the surrogate to obtain her consent was ‘so remote as to hold that the reality is that she ‘cannot be found’. As such, the requirement for consent was dispensed with under s 54(7).

This case, although unusual, highlights some of the risks associated with international surrogacy arrangement, particularly in jurisdictions that have different standards in relation to the identification of the surrogate. As Sir Macfarlane stated ‘those who follow in their footsteps in the future would be well advised to avoid engaging with an anonymous surrogate’ (para 20). This is significant not only in relation to acquiring a parental order, but also as regards the child’s identity. By not knowing the identity of the surrogate, the child’s ability to access information relating to their birth, and genetic, identity will be impinged in the future.

Finally, of note is the existence of special restrictions in relation to adoptions from Nigeria, owing to concerns over child trafficking, unreliable documentation and processes, and corruption. Although there are no comparable restrictions in relation to surrogacy, it was stated that ‘the need for care as to the reliability of documentation and the potential for the involvement of organised child traffickers underscores the need for caution in parental order applications involving a Nigerian surrogacy’ (para 19).