A and Another v P and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Date | 2012 |
| Court | Family Division |
Surrogacy – Parental order – Requirements – Death of applicant – Applicants entering into surrogacy agreement with clinic in India – Payments being made to surrogate mother – Child being biologically related to male applicant and potentially related to female applicant – Child being placed with both applicants in India and then in the UK – Applicants seeking parental order – Male applicant dying prior to order being made – Whether court having jurisdiction to consider application for parental order following death of male applicant – Whether requirements for making of order met in instant case – Human Fertilisation and Embryology Act 2008, s 54.
A married couple, Mr and Mrs A, entered into a surrogacy agreement with a clinic in India which included a provision for payments being made to the surrogate mother. The agreement was lawful in the jurisdiction where it was made but, since it involved payments which were, more likely than not, to be more than expenses reasonably incurred, it was invalid in the jurisdiction of England and Wales unless authorised by the court. The child, who was born in India in April 2010, was the biological child of Mr A. There was, however, uncertainty as to whether Mrs A was biologically related to him. The evidence from the consultant gynaecologist at the clinic confirmed that five embryos had been transferred to the surrogate mother, two having been formed from Mrs A’s oocytes and three from donor oocytes. All the oocytes had been fertilised with Mr A’s semen. The child was placed with Mr and Mrs A after his birth, initially in India and then in the United Kingdom, having obtained a British passport. On 8 July 2010, Mr and Mrs A issued an application for a parental order in respect of the child pursuant to s 54 of the Human Fertilisation and Embryology Act 2008, which provided ‘(1) 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—(a) 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, (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and (c) the conditions in subsections (2) to (8) are satisfied … (4) At the time of the application and the making of the order—(a) the child’s home must be with the applicants … (5) At the time of the making of the order both the applicants must have attained the age of 18 …’ Mr A was subsequently diagnosed with liver cancer and died on 19 December 2010. On 12 May 2011, the matter first appeared before the court, which had the benefit of a
written report from a court-appointed parental order reporter recommending that a parental order be made. The hearing was adjourned to enable further evidence to be obtained regarding the payments made and the surrogacy agreement, and for the child to be joined as a party to assist the court on the legal issues raised following the death of Mr A. At the resumed hearing on 7 June, the key issue for the court was whether the word ‘applicants’ in s 54 could be construed in the instant case 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. It was submitted by counsel for Mrs A and Mr A’s estate, as well as by counsel for the child, that the court could read into s 54(4) and (5) an interpretation which would allow a parental order to be made in favour of both applicants. They claimed that, although Parliament had not intended that single persons could be commissioning parents, it could not be said that it had intended that, where a commissioning parent died at such a late stage of the process of a parental order application, the child should be denied the legal and social benefits which flowed from having his relationship with both parents recognised by law. The court considered the right to private and family life guaranteed by art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt 1 of Sch 1 to the Human Rights Act 1998), and the requirement in art 8 of the United Nations Convention on the Rights of the Child (UNCRC) for the state to protect a child’s right to identity.
Held – An application for a parental order was essentially declaratory in nature and conferred a fundamental status on an applicant and on the child who was the subject matter of the application. The relevant welfare considerations all related to the child. As a matter of law, the court thus had jurisdiction to consider the application following the death of Mr A in the instant case. Furthermore, s 54(4)(a) and (5) of the 2008 Act could be interpreted in a way that allowed the court to be satisfied that the relevant requirements were met for the following reasons. (i) No other order or combination of orders would recognise the child’s status with both Mr and Mrs A equally. (ii) Article 8 of the European Convention was engaged and any interference with those rights had to be proportionate and justified. (iii) In the particular circumstances, the interference could not be justified as no other order could give recognition to the child’s status with both Mr and Mrs A in the same transformative way as a parental order could. (iv) To interpret s 54(4)(a) and (5) in the way submitted would not offend against the clear purpose or policy behind the requirements listed in s 54. It would not pave the way for single commissioning parents to apply for a parental order or orders being made in favour of those under the age of 18. (v) Mr and Mrs A had been lawfully entitled to apply for a parental order when they had made their application. (vi) Such an interpretation would protect the identity of the child and the family unit in accordance with art 8 of the UNCRC. (vii) It was clearly in the child’s interests that a parental order was
made to secure his legal status with both Mr and Mrs A. (viii) The child’s home had been with Mr and Mrs A from the time of his birth up until the time of Mr A’s death; thereafter he had remained in the care of Mrs A. But for Mr A’s death, the child would have remained in the care of them both. (ix) Mrs A was 36 years old and Mr A would have been 34. Although it was likely that the payments to the surrogate mother had been more than expenses reasonably incurred, there was no evidence that Mr and Mrs A had acted in anything other than the utmost good faith, or that the level of payments or the circumstances could be said to have overborne the mother’s will. In those circumstances, the payments would be authorised pursuant to s 54(8) of the 2008 Act. Having been satisfied that the requirements of s 54 were met, it was necessary to turn to the welfare considerations; the child’s welfare was the court’s paramount consideration. Since the evidence clearly demonstrated that the child’s welfare needs would be met by the making of a parental order, the court would make that order (see [31], [33]–[34], [36], below).
Cases referred to in judgmentD (J) v D (S) [1973] 1 All ER 349, sub nom D’este v D’este [1973] Fam 55, [1973] 2 WLR 183.
Ghaidan v Godin-Mendoza[2004] UKHL 30, [2004] 2 FCR 481, [2004] 3 All ER 411, [2004] 2 AC 557, [2004] 3 WLR 113, [2004] 2 FLR 600.
IJ (a child) (overseas surrogacy: parental order), Re[2011] EWHC 921 (Fam), [2011] All ER (D) 241 (Apr).
L (a child) (surrogacy: parental order), Re[2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 2 WLR 1006, [2011] 1 FLR 1423.
M v W (declaration of parentage)[2006] EWHC 2341 (Fam), [2007] 2 FLR 270.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
Pini v Romania [2005] 2 FLR 596, ECt HR.
R v A[2001] UKHL 25, [2001] 3 All ER 1, [2002] 1 AC 45, [2001] 2 WLR 1546.
WM (Adoption: Non-Patrial), Re[1997] 2 FCR 494, [1997] 1 FLR 132.
X (children) (parental order: foreign surrogacy), Re[2008] EWHC 3030 (Fam), [2009] 2 FCR 312, [2009] Fam 71, [2009] 2 WLR 1274, [2009] 1 FLR 733.
ZH (Tanzania) v Secretary of State for the Home Dept[2011] UKSC 4, [2011] 1 FCR 221, [2011] 2 All ER 783, [2011] 2 WLR 148, [2011] 1 FLR 2170.
ApplicationA married couple, Mr and Mrs A, applied, pursuant to s 54 of the Human Fertilisation and Embryology Act 2008, for a parental order relating to a child born to a surrogate mother in April 2010. Mr A died prior to the application being heard. The...
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