C (A Child) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wall |
| Judgment Date | 22 February 2002 |
| Neutral Citation | [2002] EWHC 157 (Fam) |
| Court | Family Division |
| Docket Number | Case No: BRO1POO819 |
| Date | 22 February 2002 |
[2002] EWHC 157 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
The Honourable Mr Justice Wall
Case No: BRO1POO819
Pat Monro of Darlington & Parkinson for the applicants
Hearing date: 28 January 2002
Judgment handed down: 22 February 2002
On 28 January 2002, I made a parental order under section 30 of the Human Fertilisation and Embryology Act 1990 (the Act) in favour of the applicants, whom for the purposes of this judgment I will call Mr and Mrs X. The child concerned was C, who was born on 23 June 2000, and was therefore nearly 19 months old at the date of the hearing. I reserved the reasons for my decision, which I now give.
The facts
Mr and Mrs X were married in 1979. It was a first marriage for both of them. Both wanted children, but their attempts were unsuccessful. Eventually, after much medical investigation and intervention, including IVF, they were advised to discontinue treatment, and were put in touch with an organisation called COTS (Childlessness Overcome Through Surrogacy).
Through COTS they were introduced to a surrogate mother, whom I will identify only by the initials SM. Mr and Mrs X and SM then entered into what is described as a Surrogate and Couple Memorandum for Host Surrogacy/Straight Surrogacy (the Memorandum) under which conception by SM was to take place by artificial insemination using Mr X's semen. The Memorandum, which is detailed, recorded that whilst SM was the birth mother of any child conceived by this process, she had stated that she would not consider any child born as a result of the agreement as her own, and any such child would reside with and be raised as the child of Mr and Mrs X.
SM agreed in the Memorandum to part with the child at birth, and Mr and Mrs X agreed after the birth to apply for a Parental Order under section 30 of the Act. SM agreed not to oppose the making of any such order.
All went according to plan. SM conceived at the first attempt, and C was duly born. Mr and Mrs X collected her from SM, and she has lived with them effectively from birth. She is clearly a contented and much cherished child.
What brings the application to this court is clause 10 of the Memorandum, under which Mr and Mrs X agreed to pay SM:
…. for the various expenses, including: loss of actual earnings, potential loss of earnings, maternity clothes, food craving, housework / home help, telephone calls, life insurance, wills (for travelling and child minding see below) etc: —The total expenses are £12,000….
There then follows a detailed list of additional items for which Mr and Mrs X agreed to pay.
The application to the justices
Mr and Mrs X duly made their application to the justices for a Parental Order. The justices, with some regret, felt unable to grant it. In their reasons, they said:
We have given much thought to this case. We are unfortunately not satisfied that SM did incur £12,000 in expenses and loss of earnings. We are frustrated by lack of information, despite the Children's Guardian and the parents' best endeavours to obtain more details! The parents have been commendably open about the sum paid. As the law stands, we must be sure there has been no payment to SM other than reasonable expenses. In the circumstances we cannot make a parenting order. This is no reflection on the parties present and having seen C ourselves we would agree with the Guardian's conclusions that Mr and Mrs X "care for her lovingly and completely meet her physical and emotional needs". We have taken the child's welfare into account; however, the legal requirements regarding surrogacy have not been sufficiently met. There are hopefully other avenues open to Mr and Mrs X which will lead to a satisfactory conclusion and we are transferring this case to the county court on the grounds of complexity and public interest…..
Section 30 of the Act
Section 30 of the Act reads, where material, as follows:
Parental orders in favour of gamete donors
(1) The court may make an order providing for a child to be treated in law as the child of the parties to a marriage (referred to in this section as "the husband" and "the wife") if—
(a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination;
(b) the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo; and
(c) the conditions in subsections (2) to (7) below are satisfied.
The conditions laid down in section 30(1) of the Act are clearly met. Mr and Mrs X also meet the conditions laid down in section 30(2) to (5). (Section 30(6) does not apply on the facts of this case.) These conditions are, in summary, that the order must be applied for within six months of C's birth (sub-section (2)); that at the time of the application and of the making of the order C's home must be with the applicants (sub-section 3(a)); that one or both of them must be domiciled in the United Kingdom (sub-section 3(b)); that both of them have attained the age of 18 (sub-section (4)); and that both Mr X and SM freely, and with full understanding of what is involved, agree unconditionally to the making of the order (sub-section (5)).
The problem lies in section 30(2)(7) which reads:
The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of—
(a) the making of the order,
(b) any agreement required by subsection (5) above,
(c) the handing over of the child to the husband and the wife, or
(d) the making of any arrangements with a view to the making of the order, unless authorised by the court.
The questions which arise, accordingly, are: (1) can the court be satisfied that the sum of £12,000 paid by Mr and Mrs X to SM was for "expenses reasonably incurred" and (2) if the answer to that question is "no", does the court have the power retrospectively to authorise the payment?
The first question is a pure issue of fact, and it is reasonably clear that the answer to it is "no". In this respect, therefore, it seems to me that the justices were right not to be satisfied that SM had incurred £12,000 in expenses and loss of earnings. However, as the fact of the payment, and the circumstances in which it came to be made are relevant to the exercise of the discretion retrospectively to authorise it (assuming that discretion to exist) I need to examine the issue in a little more detail.
Mr and Mrs X's evidence is that when they approached COTS, they were advised that the usual amount of expenses paid for a surrogacy agreement was £10,000, but that SM wanted £12,000. When Mr and Mrs X met SM, the latter made it clear that she would not accept a lower figure.
The agreement between SM and Mr and Mrs X was that, once she was pregnant, they would pay her £200 each month and the balance of £10,200 on a successful birth. SM asked for the money in cash to be received by her by the 19th of each month. She also asked to receive the balance of £10,200 in cash.
During the course of the pregnancy, SM admitted that she was on income support. Mr and Mrs X both say they did not appreciate the significance of this, or the difference between fees and reasonable expenses, or the problems which, arose when they applied for a parenting order. The say they received no advice from COTS on these matters, and were totally focused on having their first baby after 20 years of marriage.
During the course of the proceedings, C's guardian asked Mr and Mrs X to obtain a breakdown of the expenses paid. Mr X wrote to SM asking her to provide particulars. SM refused to do so. The material part of her letter reads:
I would very much prefer it if expenses was not mentioned. It has never been mentioned before with my previous couples and I was even told not to say anything as it would come across as if the baby was bought (by a previous couple). No-one knows whether it would stay confidential either and saying it was for loss of income, life insurance etc would be easily checked out to be not true, so it is best not to say anything as I will not give an exact figure it is not really there (sic) business whether it was 1000 of 12000. I will just say a small amount, which is true.
C's Guardian fared no better. At initial interview SM refused to discuss the matter in detail. She said that she had been in financial difficulty and that she would have had to work very long hours to support her family and meet her debts. She added that no payment or reward was received and that the money (the amount of which she would not disclose) was used to cover her reasonable expenses relating to conception, pregnancy and the birth of C. The only letter the Guardian received said:
I would just like to say that I received expenses like every other surrogate mother from the COTS agency, which is all legal and above board. So I don't understand why the courts have a problem with this, if they care to make some enquiries they would see this for themselves. I have had 3 other surrogate pregnancies and I am not the first person to do this. (All these adoptions went through straight away)
Mr and Mrs X told the guardian that they wanted to ensure that SM did not work during the pregnancy as they saw her as medically vulnerable in view of her large number of previous pregnancies. They had therefore assumed, initially at least, that the sum of £12,000 related to loss of earnings.
Like the justices, and the Guardian, I accept that Mr and Mrs X have acted honestly and in good faith throughout. They would, I think,...
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Re X and Another (Foreign Surrogacy)
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