A and another v P and Others [Family Division]

JurisdictionEngland & Wales
Judgment Date2011
Date2011
Year2011
CourtFamily Division
A and another v P and others [2011] EWHC 1738 (Fam) 2011 June 7; July 8 Theis J

Children - Orders with respect to children - Parental order - Couple domiciled in England entering into surrogacy arrangement in India - Couple jointly applying for parental order - Husband dying before determination of application - Whether jurisdiction to consider application - Whether cause of action surviving death of one applicant - Whether necessary for both applicants to be living at time of making of order - Whether order to be made - Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 F1 - Human Fertilisation and Embryology Act 2008 (c 22), s 54F2

The applicants, a married couple domiciled in England, entered into a surrogacy agreement with a clinic in India. The surrogate mother was implanted with eggs, some donated by the wife and some from an anonymous donor, all of which were fertilised by the husband’s sperm. The surrogate mother gave birth to a boy who was placed with the applicants initially in India and subsequently in England. The applicants jointly applied for a parental order in England under section 54 of the Human Fertilisation and Embryology Act 2008 and for authorisation of payments made to the surrogate mother in excess of expenses reasonably incurred. The husband died before the application was determined. The issue arose as to whether the court had jurisdiction to consider the application and whether “applicants” in section 54 of the 2008 Act could be construed so as to require two people to make the application but not require that there be two living applicants at the time of the making of the order.

On the application—

Held, granting the application, that since a parental order was essentially declaratory in nature, conferring a fundamental status on an applicant and on the child who was the subject matter of the application, and the relevant welfare considerations all related to the child, the court had jurisdiction to consider the application following the death of one of the applicants; that the primary aim of section 54 of the Human Fertilisation and Embryology Act 2008 was to allow an order to be made which had a transformative effect on the legal relationship between the child and the applicants whereby the child was treated as though born to the applicants; that therefore, since the child had lived with the applicants from the time of his birth, the effect of not making an order would be to interfere with their family life, which once established the state should facilitate and protect, and thus be unlawful under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; that no other order, or combination of orders, would have the same transformative legal effect as a parental order such that both commissioning parents were recognised as being the legal parents of the child; that, applying a purposive construction of section 54 of the 2008 Act, the court was satisfied that the relevant requirements for a parental order were met; and that, in the circumstances, the payments to the surrogate mother pursuant to section 54(8) of the 2008 Act would be authorised and a parental order, which was clearly in the best interests of the child, would be made (post, paras 12, 13, 24, 25, 29, 31, 33, 36).

ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, SC(E) applied.

D’Este v D’Este [1973] Fam 55 distinguished.

The following cases are referred to in the judgment:

D’Este v D’Este [1973] Fam 55; [1973] 2 WLR 183; [1973] 1 All ER 349

Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 113; [2004] 3 All ER 411, HL(E)

IJ (Foreign Surrogacy Agreement: Parental Order), In re [2011] EWHC 921 (Fam); [2011] 2 FLR 646

L (A Child) (Parental Order: Foreign Surrogacy), In re [2010] EWHC 3146 (Fam); [2011] Fam 106; [2011] 2 WLR 1006

M v W (Declaration of Parentage) [2006] EWHC 2341 (Fam); [2007] 2 FLR 270

Marckx v Belgium (1979) 2 EHRR 330

Pini v Romania (2004) 40 EHRR 312; [2005] 2 FLR 596

R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1, HL(E)

WM (Adoption: Non-Patrial), In re [1997] 1 FLR 132

X (Children) (Parental Order: Foreign Surrogacy), In re [2008] EWHC 3030 (Fam); [2009] Fam 71; [2009] 2 WLR 1274

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166; [2011] 2 WLR 148; [2011] 2 All ER 783, SC(E)

The following additional cases, supplied by courtesy of counsel, were cited in argument:

Leeds Teaching Hospitals NHS Trust v A [2003] EWHC 259 (QB); [2003] 1 FLR 1091

T v B [2010] EWHC 1444 (Fam); [2010] Fam 193; [2010] 3 WLR 1349; [2011] 1 All ER 77

APPLICATION

The applicants, a married couple domiciled in England, applied for (i) a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 in respect of a child, B, who had been born as the result of a surrogacy arrangement entered into in India, and (ii) retrospective authorisation of payments which they had made to the surrogate mother. The husband died before the hearing of the application.

The application was heard and judgment handed down in private, with leave to report on the condition that the anonymity of the child and adult members of the family would be preserved.

The facts are stated in the judgment.

Laura Moys (instructed by Young & Lee, Birmingham) for the applicants.

Deirdre Fottrell (instructed by Mullinger Banks) for the child.

The court took time for consideration.

8 July 2011. THEIS J handed down the following judgment.

1 Although the circumstances that have arisen in this case are extremely rare they bring into sharp focus again the difficulties that can arise in international surrogacy arrangements. I have therefore given permission for this anonymised judgment to be reported.

2 The application before me was made by a married couple, Mr and Mrs A, for a parental order relating to a little boy B who was born on 12 April 2010. The application was made pursuant to section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA 2008”).

3 B was born in India. There was in place a surrogacy agreement between Mr and Mrs A and a clinic in India which included provision for the payments being made to the surrogate mother. The agreement was lawful in the jurisdiction where it was made. It involved payments to the surrogate mother which are, more likely than not, to be more than expenses reasonably incurred and, consequently, invalid in this jurisdiction unless authorised by the court.

4 B is the biological child of Mr A, there is uncertainty as to whether or not Mrs A is biologically related to him. The evidence from the consultant gynaecologist at the clinic confirmed that five embryos were transferred into the surrogate mother, two were formed from Mrs A’s oocytes and three from donor oocytes. All oocytes were fertilised with Mr A’s semen.

5 B was placed with Mr and Mrs A after his birth, initially in India and then in this jurisdiction having obtained a British passport.

6 Mr and Mrs A issued their application for a parental order on 8 July 2010.

7 Tragically, Mr A was diagnosed with liver cancer and died on 19 December 2010.

8 Following directions having been made the matter was listed before me on 12 May 2011. I had the benefit of a full report from the parental order reporter appointed by the court. I adjourned that hearing until 7 June to enable (1) further evidence to be obtained regarding the payments made and the surrogacy agreement and (2) for B to be joined as a party to assist the court on the legal issues raised following the death of Mr A.

9 The matter came back before me on 7 June 2011 when I heard detailed submissions on the law from both Ms Moys, on behalf of Mrs A and Mr A’s estate (the latter instruction is via Mrs A as the sole executrix of Mr A’s estate) and Ms Fottrell on behalf of B. They both submit the court should make a parental order. I directed counsel to file and serve a written document setting out the other forms of order that would be available to secure B’s position. That document was filed on 10 June.

10 Does the cause of action survive the death of one of the joint applicants after the making of the application but prior to the making of the order? There is no definition of “applicant” in either the HFEA 2008 or the relevant Family Procedure Rules 2010. The Law Reform (Miscellaneous Provisions) Act 1934 provides, at section 1(1):

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation …”

11 In D’Este v D’Este [1973] Fam 55 the court was concerned with a summons under section 17 of the Matrimonial Causes Act 1965 for a variation of the post nuptial settlement in respect of property. The court determined the husband’s death prior to the hearing extinguished his claim. This was mainly due to the fact that one of the relevant factors the court had to take into account in reaching its decision involved an examination of the relative needs of the parties at the time of the hearing. That was clearly not possible where one of the parties had died.

12 The application I am concerned with can be distinguished. An application for a parental order is essentially declaratory in nature and confers a fundamental status on an applicant and on the child, who is the subject matter of the application. The relevant welfare considerations all relate to the child. Therefore, I consider the court does, as a matter of law, have jurisdiction to consider the application following the death of Mr A.

13 On the evidence I have before me I am satisfied that the...

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