Re G (Surrogacy: Foreign Domicile)
| Jurisdiction | England & Wales |
| Judge | Mr Justice McFarlane |
| Judgment Date | 28 November 2007 |
| Neutral Citation | [2007] EWHC 2814 (Fam) |
| Court | Family Division |
| Date | 28 November 2007 |
[2007] EWHC 2814 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mcfarlane
Darren Howe (counsel for the child's guardian ad litem)
Hearing dates: 21st March 2007, 26th April 2007, 5th July 2007, 31st July 2007.
HTML VERSION OF JUDGMENT
Introduction
This judgment is being handed down following the conclusion of proceedings relating to the parentage and future upbringing of a baby girl, M, who was born on the 29 th September 2006. M was conceived as a result of a surrogacy arrangement made between a married couple, Mr and Mrs G, and the surrogate mother, Mrs J. Such non-commercial surrogacy arrangements are not illegal and, whilst not frequent, form an accepted means whereby a child may be brought into being for the benefit of married couples who have encountered difficulties in conceiving a child without intervention.
Since 1994 the law has provided for the commissioning parents to achieve the status of full parents of a child born following such a surrogacy arrangement by obtaining a 'parental order' under Human Fertilization and Embryology Act 1990, s 30 [HFEA 1990, s 30]. A parental order, if granted, is of like effect to an adoption order with the consequence that the child is for all purposes treated in law as a child of the marriage and not a child of any other person. Since 1994 the granting of parental orders in appropriate cases has become an accepted and unremarkable aspect of the work of the family court.
The terms of HFEA 1990, s 30(3)(b) make it plain that one or both of the commissioning couple must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man. What renders the case of young M remarkable, and justifies this detailed judgment, is that Mr and Mrs G, the commissioning parents, are Turkish nationals who are domiciled in Turkey. As a result, it is not legally possible for them to achieve the status of M's parents by means of a parental order.
The procedural history of this case, to which I am about to turn, is a cautionary tale which highlights the legal, emotional, and not least the financial consequences of surrogacy arrangements which are undertaken in this jurisdiction involving commissioning parents who are not domiciled in the UK. The law relating to the removal of children from the UK for adoption overseas is both complex and strict. This case has therefore involved some seven court hearings in the High Court in order to pick a way through the legal maze to achieve the most effective legal arrangement under which the commissioning parents can remove M to their home in Turkey in the hope of adopting her under Turkish law. The process has required, as a matter of law, a full social-work assessment by the relevant local authority and by a children's guardian appointed by CAFCASS. Expert legal opinion has been required as to the current state of Turkish law. I am advised that the total cost of the social work and legal input in unravelling the consequences of the arrangement that led to M's birth is just short of £35,000.00. That sum falls to be paid entirely by the British tax payer, the court being satisfied, in the circumstances of this case, that it would not be appropriate to seek to re-coup any of those costs from Mr and Mrs G, Mrs J or COTS, the surrogacy agency who assisted Mr and Mrs G in establishing the arrangement.
In emotional terms, the nine months that it has taken to resolve matters before the English Court will have undoubtedly caused stress and instability for Mr and Mrs G and consequently, M, at the very time when they should have been free to settle down to their new family life and devote all their emotional energies to the task of nurturing a young baby.
The court has been told, and accepts, that, hitherto, from time to time couples who are domiciled abroad have participated in successful surrogacy arrangements with UK surrogate mothers and have achieved a parental order with respect to the resulting child under HFEA 1990, s 30. If that is indeed the case, then such orders must have been made outside the jurisdiction of the court, which, as I have indicated, is confined to applicant parents where one or both is domiciled in the UK, Channel Islands, or Isle of Man. It is to be hoped that the publication of this judgment will see an end to such unlawful parental orders being made.
Background
Mr and Mrs G are both Turkish nationals who were married in 1997 in Turkey. They are domiciled in Turkey, but Mr G has from time to time worked in other Eastern European countries.
Following difficulties that they had encountered in conceiving a child, Mr and Mrs G approached a British surrogacy agency, COTS (Childlessness Overcome Through Surrogacy), in September 2004. As a result of that contact they were introduced to Mrs J and ultimately signed a Memorandum of Agreement with her on the 10 th February 2005 under which she agreed to act as a surrogate mother for them.
Mrs J is a married woman. She separated from her husband, Mr PJ, in about 2004; however, the couple have not divorced and remain legally married. Some short time after the separation Mr PJ left England and took up residence in Spain. As will become apparent the position in law of Mr PJ and the potential for him to be regarded as the legal father of M has been an added difficulty in this case and has required detailed consideration by the court.
Following a number of unsuccessful attempts arranged through an IVF clinic, M was conceived using sperm from Mr G and an egg from Mrs J through a process of insemination carried out in Mrs J's home. M was born on 25 th September 2006. Shortly before the birth Mr and Mrs G came to England and rented a flat in the locality. M was a healthy baby and when ready for discharge from the maternity hospital was given over by Mrs J to Mr and Mrs G. Since that time M has remained in the full time care of Mr and Mrs G either in England or, with the court's agreement, back in their home state of Turkey.
M's birth was registered at the local District Registry. Mrs J was named as the mother and Mr G was named as the father. Two days later Mr and Mrs G filed their application for a parental order under HFEA 1990, s 30. The application included the incorrect assertion that Mrs and Mrs G were domiciled in the United Kingdom.
Following an initial hearing before the local magistrate's court, where the international dimension of the case was appreciated, the proceedings were transferred to the county court and thereafter to the High Court. A CAFCASS officer, Mrs HC, was initially appointed as the 'parental order reporter' but was subsequently appointed as M's guardian ad litem in the proceedings under FPR 1991, rule 9.5. A solicitor was appointed to act on M's behalf on the instructions of Mrs HC. It is, at this stage, appropriate to record that the court has been very greatly assisted by the work of that solicitor and counsel in achieving an appropriate resolution of these proceedings.
Parental Order
The statutory basis upon which a court may make a parental order is set out in HFEA 1990, s 30(1)-(7) in the following terms:
(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.
(2) The husband and the wife must apply for the order within six months of the birth of the child or, in the case of a child born before the coming into force of this Act, within six months of such coming into force.
(3) At the time of the application and of the making of the order-
(a) the child's home must be with the husband and the wife, and
(b) the husband or the wife, of both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.
(4) At the time of the making of the order both the husband and the wife must have attained the age of eighteen.
(5) The court must be satisfied that both the father of the child (including a person who is the father by virtue of section 28 of this Act), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.
(6) Subsection(5) above does not require the agreement of a person who cannot be found or is incapable of giving agreement and the agreement of the woman who carried the child is ineffective for the purposes of that subsection if given by her less than six weeks after the child's birth.
(7) 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.
HFEA 1990, s 30 therefore provides a number of conditions which must be met before a court has jurisdiction to make a parental order. In the present case all save two of the conditions are satisfied on the following basis:
a) This was a partial surrogacy arrangement involving an embryo created by the sperm of the commissioning husband and the egg of the surrogate mother [HFEA 1990, s30(1)(a)(b)];
b) Mrs and Mrs G applied for the order within six...
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