AB (1st & 2nd Applicants) v DE (1st & 2nd Respondents)

JurisdictionEngland & Wales
JudgeMrs Justice Theis Dbe
Judgment Date15 May 2013
Neutral Citation[2013] EWHC 2413 (Fam)
Docket NumberCase No: IL12P00153
CourtFamily Division
Date15 May 2013

[2013] EWHC 2413 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Theis Dbe

Case No: IL12P00153

Between:
AB
1st & 2nd Applicants
and
DE
1st & 2nd Respondents

Ms Samantha King (instructed by Natalie Gamble Associates) for the Applicants

Hearing dates: 4th March & 15 May 2013

Mrs Justice Theis Dbe

This judgment was handed down in private on 15th May 2013. It consists of 8 pages and has been signed and dated by the judge.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Theis Dbe
1

This matter concerns an application for a parental order in relation to a child C born in 2012 pursuant to section 54 Human Fertilisation and Embryology Act 2008 ('HFEA 2008'). I heard this matter on the 15 May 2013 when I made a parental order. I gave a short ex tempore judgment then and stated I would provide a full judgment in due course.

2

C was conceived through IVF treatment in Moscow, with the First Applicant's sperm and eggs from an anonymous Russian donor. He was carried by a married Russian surrogate mother. She and her husband are the Respondents to this application.

3

The Applicants met in 1991 and married in 2001. The Second Applicant has been married before and has three grown-up children. The Applicants started trying for a family in 1992, soon after they met. For the ten years between 1996 and 2006 they attempted 10 cycles of IVF treatment in the UK using donated eggs. All of these were unsuccessful. They considered adoption and fostering, but decided not to proceed with these options. They contacted and sought the assistance of a clinic in Italy for further IVF treatment with an egg donation programme through a clinic in Russia. This too was unsuccessful.

4

In August 2008 they approached the clinic in Russia to discuss their surrogacy programme. In January 2009 they were matched by the clinic with a surrogate and sought legal advice in the UK. This was just after the decision in Re X and Y [2008] EWHC 3030 (Fam), and they were advised they needed to be matched with an unmarried surrogate. Two attempts at conception in 2009 were unsuccessful. They were put in touch with another agency that operated as a law firm and matching agency. They were put in touch with another unmarried surrogate mother, who briefly became pregnant in early 2011 although subsequently miscarried. The Applicants were subsequently put in touch with the First Respondent, a married surrogate mother. Following IVF treatment she became pregnant and gave birth to C in Moscow in 2012. Both the Applicants were present at the birth and have cared for C since.

5

The Applicants initially made an application for a British passport for C without disclosing the surrogacy context. They subsequently sought legal advice and made proper applications, fully disclosing the details of their previous application. C was registered as a British citizen by the Home Office and the family returned to the UK after receiving his passport. The Applicants had been in Russia for six months.

6

Surrogacy agreements are legal in Russia. The court has the benefit of expert evidence from a Russian Lawyer which confirms that the Applicants are treated as C's legal parents under Russian law, having been legitimately registered as such on his Russian birth certificate with the consent of the First Respondent. Neither of the Respondents is treated as a legal parent of C in Russia.

7

In considering a parental order application the court must be satisfied that the criteria under s 54 HFEA 2008 are fulfilled and that such an order meets the lifelong welfare needs of the child concerned.

Section 54 HFEA 2008 criteria

8

The evidence clearly demonstrates that the First Applicant's gametes were used to bring about the creation of the embryo and C was carried by the First Respondent (s54 (1)).

9

The Applicants are married (s54 (2)).

10

Their application was made within six months of C's birth (s54 (3)).

11

C has been in the continuous care of the Applicants and had his home with the Applicants at the time of the application and of the making of the order (s54 (4) (a)). Both Applicants are domiciled in the United Kingdom, they were both born here and their domicile of origin remains in place (s54 (4)(b)).

12

The Applicants are over 18 years (s54 (5)).

13

As the surrogate mother was married the court has to be satisfied that both Respondents consent to a parental order. The First Respondent is the woman who carried the child and her consent is ineffective if it is given less than six weeks after C's birth (s54 (6) (a) and (7)). As the Respondents were married at the time of C's conception the Second Respondent is C's legal father by virtue of s 35. He is therefore the 'other person who is a parent of the child' and his consent to a parental order is required (s54 (6) (b)). There is a written consent signed by each of the Respondents. It sets out clearly what they are consenting to. Whilst is not a Form 101A it is in fact more detailed. Rule 13.11 (1) Family Proceedings Rules 2010 (FPR) states the consent can either be in Form 101A or a form to 'the like effect'. This form clearly sets out all the requirements to satisfy the court that the Respondents fully understood what is involved and the effect of their consent. The evidence clearly establishes that the consent was translated into Russian and sent by the Applicants' solicitors to the agency in Russia. They made the arrangements for the Respondents to sign it in the presence of a notary who witnessed the Respondents' signature and notarised the document (FPR 13.11(4)). Following further directions from the court, evidence was filed which demonstrates the Respondents were literate and able to understand the document they were signing. I am therefore satisfied the Respondents have both consented to the parental order as required by s54, and in the case of the First Respondent this was more than six weeks after C's birth (s54 (6) and (7)).

14

The final requirement under s 54 concerns payments. Section 54 (8) provides

(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) above,

(c) the handing over of the child to the applicants, or

(d) the making of any arrangements with a view to the making of the order, unless authorised by the court

15

Under the terms of the surrogacy arrangement entered into between the Applicants and the agency they agreed to pay the agency €50,000 for the cost of the surrogacy arrangement. This sum included all costs, including a payment to the First Respondent, the precise amount the Applicants were unaware of at the time of the agreement. The initial letter from the agency stated that the First Respondent received 750,000 RR for her 'medical expenses, transportation costs, baby sitter, loss of wages, inconvenience and other financial losses caused by the pregnancy and consequent rehabilitation'. Following further directions from this court additional information was filed as to precisely what payments were made to the First Respondent. That revealed she was in fact paid 196,269 RR (c£4,324) for actual expenses incurred by her (travel, medication, medication, clothes, child care costs etc). There is a small amount (966 RR (c£22)) itemised as commission which does not appear referable to any expense. She also received compensation of 400,000 RR (c£8,812). Other items listed by the agency are expenses to third parties (323,500 RR (c£7,127) for hospital and accommodation costs for the First Respondent) and 9,612 RR (c£211) for IVF medication. The Applicants were able to file evidence from the translator who liaised between the parties when they were in Russia. She was able to speak to the First Respondent and obtain confirmation from her that the sums itemised by the agency as having been paid to her had in fact been received by the First Respondent.

16

In considering whether to exercise its discretion to authorise the payments the court considers a number of factors:

(i) was the sum disproportionate to reasonable expenses;

(ii) were the applicants acting in good faith and without 'moral taint' in their dealings with the surrogate mother, and

(iii) were the Applicants' party to any attempt to defraud the authorities.

17

The total sum paid to the agency was €50,000, out of which the various expenses were paid, including the compensation fee to the surrogate mother. No doubt there was an element of the fee that was profit for the agency; on the figures that are available about half of the global fee went to the agency. This is the first Russian surrogacy case that the...

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