Re G and M
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Theis |
| Judgment Date | 01 April 2014 |
| Neutral Citation | [2014] EWHC 1561 (Fam) |
| Court | Family Division |
| Date | 01 April 2014 |
| Docket Number | No. IL13P00264 |
[2014] EWHC 1561 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mrs. Justice Theis
(In Private)
No. IL13P00264
APPEARANCES
Mr Hassan Khan & Mr Colin Rogerson (instructed by Dawson Cornwell) appeared on behalf of the Applicants.
Ms. Melanie Carew appeared on behalf of CAFCASS Legal.
Introduction
This case provides yet another timely illustration of the legal minefield in international surrogacy arrangements. It underscores the critical importance of anyone considering this type of arrangement to secure expert advice, in particular legal advice in both jurisdictions at each stage of the process.
I am concerned with an application for a parental order concerning twins, G and M, born in March 2013. They were born following a commercial surrogacy arrangement entered into between the applicants, a same sex couple BB and BD, and the respondents, AM and BM, through a surrogacy agency based in the US. The married gestational surrogate mother gave birth to the children following the transfer of embryos from the gametes of the applicants and donor eggs. The applicants each have a biological connection to one of the children. The children were born in Iowa and following legal steps that secured the legal position of the applicants they returned to this jurisdiction where they have remained in their care.
The court is indebted in this case to the extremely helpful and thorough skeleton arguments submitted to the court, both by Mr. Khan and Mr. Rogerson on behalf of the applicants, and in particular by Ms. Carew on behalf of CAFCASS Legal. Ms. Carew, pursuant to an invitation made by this court on 5 th March, agreed to become advocate to the court to assist the court in relation to two particular issues. Firstly, the question of domicile which is one of the criteria under s.54 of the Human Fertilisation and Human Embryology Act 2008 (HFEA 2008). Secondly, the effect of the adoption proceedings that had taken place in Iowa.
I shall deal with that second aspect first, before I turn to deal with the s.54 criteria.
Section 83 ACA 2002
Ms. Carew has rightly raised an issue about the effect of s.83 of the Adoption and Children Act 2002. The relevant parts of s.83(1) provides:
"1) This section applies where a person who is habitually resident in the British Islands —
(b) At any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of six months ending with that time."
The section then goes on to make various provisions including, importantly at s 83 (8), a person may be liable for a summary conviction in relation to contravention of that section. It sets out the maximum terms of summary conviction not exceeding six months, or a fine to the statutory maximum, or both.
There are, of course, very important policy considerations that underpin s.83 ACA 2002 to regulate entry of children into this jurisdiction who have been the subject of foreign adoptions, and who have not gone through the requisite procedures. That is set out very clearly in the relevant Convention provisions. Whether it was intended to cover the situation that arose in this case in the context of a surrogacy arrangement where an application is made for a parental order may be open to debate.
The children were born in the State of Iowa. The legal position in that State concerning this situation is summarised in an email from Maxine Buckmeier who was the advocate who represented the applicants in the legal procedures that took place in April of last year. Her email states as follows:
"Commercial surrogacy is not prohibited in Iowa however there are no explicit statutes. Iowa Code Chapter 710 prohibits the purchase or sale of an individual and surrogacy agreements are specifically excluded from this prohibition. Iowa law does not prohibit gay or lesbian couples from adopting children or children of a same sex partner. Furthermore, Iowa allows same sex couples to marry under the laws of Iowa. Therefore, same sex couples are allowed to enter into surrogacy contracts.
Absent court proceedings, the legal parents of a child born through surrogacy are the mother who births the child and her husband, if she is married. [So very similar to the situation in this jurisdiction]. Iowa does not differentiate between heterosexual and same sex intended parents, thus, the legal process is the same. The parental rights, or parent-child relationship, is terminated by court order with respect to the birth mother and legal father. The intended parents' biological relationship to the child is proven by scientific evidence (usually DNA), and the court establishes the intended biological parent as the parent, or parents, and then orders the Department of Vital Records to remove the legal father from the birth certificate, and to issue a new birth certificate showing the biological father or mother, as the case may be, on the birth certificate.
In the case of same sex couples, the partner who is not the biological father or mother may adopt the partner's child and then be added to the birth certificate as a second parent [what would be termed here a step-parent adoption]."
Ms. Buckmeier was asked some further questions. In her response shown to me today as to whether the court was made specifically aware of a surrogacy arrangement, she states:
"Court orders in this case do not refer to any surrogacy arrangement. However, the court was made aware of the surrogacy arrangement at the hearing and prior to the court signing the order."
What happened in this case was what Mr. Khan described as a "five step process" through the court system in Iowa. I shall deal briefly with the position in relation to G which concerned BB; it was repeated in reverse in relation to M.
First of all, on 5 th April 2013 there was what has been termed "an administrative step". A document was signed by the surrogate mother, AM, termed "release of custody". In that document she confirms that she is the natural mother of G, and confirms that:
"I release and surrender complete and total custody of the said child to Maxine Buckmeier of Sioux County, Iowa, knowing that the purpose of this release is to permit her to file a petition in the juvenile court for the termination of my parental rights of this child which would completely sever and extinguish the parent-child relationship between me and the said child.
I further state that I have read and understood all of the provisions contained in this release."
She then continues in that document, "The identity of the putative natural father of G is BB of London, England", and she confirms that she is married to BM and is over the age of 18. She acknowledges she understands what the legal effect of the release of custody is, and that she has had the opportunity to seek legal advice. She has also been offered three hours of counselling regarding her decision, and in that document agrees to waive that right. AM signs that document which completes the "first step".
The second step took place on the same day, 5 th April. A document entitled "Acceptance of release" is signed by Maxine Buckmeier who is the advocate. She accepts the above release of custody of such minor child (the document referred to above). She specifically agrees to act as custodian for such child in accordance with the laws of the state of Iowa. That document is witnessed by both the applicants.
The third step took place on 10 th April and that document is filed with the district court for Woodbury County in Iowa. It is a document that sets out the finding of who the biological father of G is, namely BB following the result of DNA tests. It sets out that BM, the surrogate husband, is removed from the birth certificate and it permits the change of name of the child.
The document records that the petitioner, BM, is not genetically related to the child. The court further finds the biological father of the child is BB. It is then ordered, adjudged and decreed the petitioner and legal father of the said minor, BM, be removed as the father of the child on the original birth certificate. It concludes:
"It has further ordered, adjudged and decreed that BB has hereby established that the child's biological father and his name shall be shown on the child's birth certificate, and the child's name shall be changed to G."
It also records this will be registered with the Iowa Department of Vital Records.
The fourth step was on 15 th April. This is set out in an order signed by the court. It is an order terminating parent-child relationships. It is on the petition of Maxine Buckmeier, the lawyer, to terminate the parent-child relationships of G. The court finds it has jurisdiction in relation to the subject matter, it records present at the hearing Maxine Buckmeier and David Gill (who is described as the guardian ad litem of the said child on behalf of the child). AM and BM, the mother by birth and the legal father, are not present. It refers to evidence being heard by the court and the parties being given an opportunity to be heard. It records the various documents that have been signed, the release of custody and other documents I have already referred to. It then goes on as follows:
"The court therefore finds that the petition of Maxine Buckmeier to terminate the parent-child relationships of the above named minor be granted as to the mother by birth and the legal father of the said child, and that she be appointed guardian and custodian of the said...
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Re Lh And Another
...Surrogacy Fee of US$19,200 was not disproportionate to reasonable expenses and thus authorised the said sum (§§30‑31). (4) In Re G, M[2014] EWHC 1561 (Fam), the English Court found that an Agency Fee of US$20,750 and a Surrogate Fee of US$38,950 were not significantly different than payment......