J v G
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis Dbe |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 1432 (Fam) |
| Docket Number | Case No: IL12P00185 |
| Court | Family Division |
| Date | 26 March 2013 |
[2013] EWHC 1432 (Fam)
Mrs Justice Theis Dbe
Case No: IL12P00185
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Julian Date (instructed by Natalie Gamble Associates) for the Applicants
Hearing date: 26 March 2013
It consists of 9 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
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.
This matter concerns an application for a parental order under section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) in respect of twins born in 2012 following a surrogacy arrangement in California, USA. The children were conceived through IVF treatment in the USA with the second applicant's sperm and eggs from a third party donor. They were carried by a married surrogate mother, the first respondent, following a surrogacy arrangement entered into between the parties under Californian law. The second respondent is her husband. The respondents have taken no active part in these proceedings other than confirming their consent to the orders applied for.
Background
The applicants, both British citizens are domiciled and resident in the United Kingdom. They met in 2003 and became civil partners in 2010. They first began talking about starting a family in 2003 and from about 2007 seriously researched the options. They considered adoption, but were discouraged by the waiting time and lack of certainty. They also considered surrogacy within the United Kingdom, but at that time parental orders were not available to same sex couples. Those changes did not come into effect until April 2010, with the implementation of the HFEA 2008. The applicants looked at surrogacy overseas and following further research decided to engage a clinic in California. Between 2008 and 2010 the applicants were matched with four different surrogates and two egg donors. Following nine IVF procedures, eight of which were unsuccessful and the other resulting in a pregnancy which went on to fail, the applicants had to re-assess their plans.
In early 2011 the applicants contacted the British Surrogacy Centre of California ('BSC') which operates in this jurisdiction from an address in Essex. Their website refers, in general terms, to the provisions of the Surrogacy Arrangements Act 1985. Section 2 (1) provides
(1) No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—
(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,
(b) offer or agree to negotiate the making of a surrogacy arrangement, or
(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;
and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.
Contravention of this provision is a criminal offence.
According to the documentation I have seen the applicants paid £3,500 to BSC for their services. They signed a consulting contract which stated the applicants were in ' need of assistance in the area of project Management with regards to their planned surrogacy which will take place in the State of California USA. The British Surrogacy Centre has agreed to perform consulting work for the [applicants] in providing support and consulting services and other related activities as directed by the [applicants]; To include but not limited to, Home assessments, liaison between clinics, surrogate, egg donors, Home office etc. We will also help with assistance back to the UK and with Passport applications in the UK and the USA. Our consultants in the USA will also work with the [applicants] to establish parental responsibility along with social workers from the BSC." The contract goes on to state " By signing this agreement, you are signing to also confirm that you are in no way paying for baby(ies) in any way whatsoever. You are also agreeing to acknowledge that you are also not paying for brokering services for surrogacy, which is considered illegal in the United Kingdom, but that you are contracting the British Surrogacy Centre Inc in the USA to project manage the agreement on your behalf, which will be administered by its employees based in the state of California and also in the UK."
The agreement was signed in February 2011. BSC put the applicants in touch with a US clinician at California Fertility Partners. The first respondent surrogate mother was identified by BSC as one of a number of experienced surrogate mothers. She is a US citizen who lives in California, was married and had her own children. The applicants liked her profile. The BSC facilitated the negotiations between the applicants and the first respondent, in particular the proposed payment. This was negotiated from between $55 – 60,000 to $45,000 (with an additional payment of $5,000 for twins). The first respondent had her own legal adviser. In fact the applicants decided to instruct their own US lawyer who considered the terms of the proposed surrogacy agreement, which had been provided to them by BSC. BSC matched the applicants with an anonymous egg donor.
The first embryo transfer resulted in a pregnancy, unfortunately this failed as it was an ectopic pregnancy. A further transfer was made in December 2011, which was successful. The applicants and the first respondent remained in close contact during the pregnancy. The applicants went out to the US to see the first respondent and her family and attend some of the scan appointments.
During this period the applicants decided to cease using the BSC. It has not been necessary, in the circumstances of this case, to consider the role played by BSC. However, I have directed the applicant's solicitors to send a copy of this judgment to the Department of Health, which has regulatory responsibility in this area.
At 25 weeks the applicants instructed a US lawyer in California to start the relevant procedure there. The applicants were awarded paternity orders by the Californian court prior to the birth, enabling them to be named together on the children's US birth certificates.
The applicants made the decision to go and stay near the first respondent for the last few weeks of the pregnancy. This enabled them to get to know the first respondent and her family better, assist with practical matters and attend the various medical appointments. Both applicants' parents joined them in the US prior to the birth.
Following their birth the children have been in the full time care of the applicants. The applicants obtained US passports for the children and returned to the UK on 12 September with the children and their wider family. The children were given a visitor's visa for 6 months. Following their return the applicants consulted immigration lawyers and applied for British citizenship for the children.
The applicants have remained in contact with the first respondent and her family.
Section 54 HFEA 2008
Before the court can consider making a parental order the requirements set out in section 54 have to be met.
The evidence clearly establishes that the children were carried by the first respondent, who is not one of the applicants, as the result of the placing in her of an embryo; the gametes of the second applicant were used to bring about the creation of the embryo (s54 (1)). The applicants are civil partners (s54 (2)). The application for a parental order is dated 12 September 2012 and was made within six months of the children's birth (s54 (3)). At the time of the application and the making of the order the children's home is with the applicants (s 54(4) (a)). Both applicants were born in the United Kingdom and their domicile of origin is here (s54 (4) (b)). The applicants are both over 18 years (s 54 (5)).
Section 54 (6) and (7) require the first and second respondent to have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. In addition, the first respondent's consent must be more than six weeks after the birth. Both respondents have signed a notarised statement setting out their agreement to the parental order. This is dated 9 November 2012, which is more than the required six weeks after the birth. It is in a form to like effect of Form 101A (Part 13.11(1) Family Proceedings Rules 2010 'FPR 2010') and executed in accordance with Part 13.11(4) FPR 2010. Although not strictly necessary, there is also additional evidence to confirm the respondent's consent. She has acted as a surrogate twice before and has the full support of her husband and three children. Prior to the birth the respondents cooperated with the proceedings in California which formally terminated their parental status in California. They have fully engaged in these proceedings, consistently demonstrating their support for the parental order application. In the first respondent's conversation with the parental order reporter, she confirmed her consent again and the reporter observed 'It was apparent on speaking to the first respondent that she is an educated woman who entered into surrogacy as a result of a desire to help others'.
Section 54(8) provides that the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given by either of the applicants for or in consideration of the making of the order, any agreement, the handing over of the...
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