Re H (a child) (surrogacy breakdown)
| Jurisdiction | England & Wales |
| Judge | McFARLANE,HOLROYDE,PETER JACKSON LJJ |
| Judgment Date | 17 November 2017 |
| Court | Court of Appeal (Civil Division) |
Surrogacy – Agreement – Surrogate mother and father refusing consent to parental order – Children proceedings – Welfare – Parental responsibility – Contact.
The child was born as a result of a surrogacy arrangement between a male same-sex couple, A and B, and a husband and wife; the wife had acted as a surrogate twice before. The embryo transfer, performed by a Cyprus clinic, used embryos created from both A and B’s sperm and a donor egg from a Spanish egg donor. A DNA test later confirmed that in fact A was the father.
The original intention was that after the birth both couples would cooperate in obtaining a parental order in favour of A and B. However, the relationship between the couples deteriorated significantly; the wife’s health had been bad following conception and about seven months into the pregnancy the husband and wife stopped communicating with A and B. At some point, having obtained legal advice the husband and wife decided that, notwithstanding the surrogacy agreement, they were not going to hand the child over to A and B. The day before the birth, a lawyers’ letter was sent to A and B, indicating that the husband and wife would not be giving their consent to a parental order. The birth was a difficult one and both the wife and the child suffered ill-health immediately afterwards, delaying their release from hospital. A and B were not informed about the actual birth until after the husband and wife had registered the child using the name they had chosen rather than the name chosen by A and B. A and B immediately issued legal proceedings; as part of that process the court established arrangements for the child to have contact with A and B, which eventually developed into a shared care arrangement.
Although the wife had no genetic connection to the child, she was the legal mother under s 33(1) of the Human Fertilisation and Embryology Act 2008, and the husband was the legal father under s 35(1), unless a parental order was made under s 54, or an adoption order. Surrogacy arrangements were unenforceable, under s 1A of the Surrogacy Arrangements Act 1985 and parental orders could be made only if the legal parents unconditionally agreed under s 54(6) of the 2008 Act. Further, a legal mother’s agreement was ineffective if given less than six weeks after the child’s birth, under s 54(7). However, during the course of the proceedings A and B were each given parental responsibility, by virtue of an interim child arrangements order under s 8 of the Children Act 1989.
The children’s guardian was concerned that the husband and wife would not accept B as a valid parent and were in general less able to look at matters from the child’s point of view. She therefore recommended that the child, then seven months old, should live with A and B and have visiting contact with the husband and wife six times a year.
The judge concluded that it would be best for the child to live with A and B because: (1) the child’s identity needs as a child of gay intended parents would be best met by living with a genetic parent, (2) A and B could meet the child’s day-to-day needs in an attuned way, (3) A and B were best able to promote the relationship with the husband and wife, having remained positive about their significance despite the difficulties, and (4) the husband and wife were unlikely to change their views about A and B significantly. The judge went on to make specific issue orders for A and B to make the day-to-day decisions in respect of the child and decide on schooling, medical treatment and other parenting decisions, and permitting them to remove the child from the jurisdiction for longer than a month, subject to notifying the husband and wife of the destination and travel plans. The judge confined the contact to six times a year, on the basis that more frequent contact would risk undermining A and B’s ability to care for the child, giving rise to a risk of future emotional harm. Finally, the judge approved a change of the child’s name to reflect each of the adult surnames.
The husband and wife did not appeal the decision about where the child should live and two days later the child moved to live full-time with A and B. The husband and wife did, however, appeal the specific issue and contact orders, arguing that the judge had effectively made a parental order in all but name and that she should have done more to promote all four adults as parents.
In the week before the appeal hearing, publicity about the case was generated by A and B. As a result, the husband and wife were granted time to consider amending their grounds of appeal, with a view to challenging the judge’s determination about where the child should live. A and B filed a statement setting out their contact with the media and use of social media and in fact no amendment was made to the grounds of appeal. However, at the invitation of all parties, an order was made restraining A and B from generating further publicity about the case.
Held – (1) The law did not take a special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures. The welfare principle applied with full force in such cases; indeed, the more unusual the facts, the greater the need to keep the child at the heart of the decision and to ensure that the interests of others prevailed only where they were in harmony with the interests of the child. Applying Re N (a child)[2007] EWCA Civ 1053, the essential question in every case was: ‘all things considered, which outcome would be best for the child?’ The answer would depend on the circumstances, which in a surrogacy case would include, in addition to the factors in the Children Act 1989 s 1(3) checklist, the child’s gestational and legal parentage, his or her genetic relationships and the manner in which the intended surrogacy had come about. Equally, while universally applicable principles should inform the approach to issues of parental responsibility and contact, it was not helpful to draw an analogy with a conventional case of separated parents. The law was the same but each case was different, different considerations applied and the court needed to analyse and carefully weigh those considerations. The range of family situations was unending and the difficult task of identifying the right solution for a particular child was not helped by imposing a template forged in an entirely different context (see [4], [12], [25](4), below).
(2) The judge had rightly taken a conventional welfare approach to an unconventional family structure. Her orders had not been equivalent to the making of a parental order, which was transformative, leaving the surrogate with no rights, no right to apply to court and without any...
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Re C (surrogacy: consent)
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