Re MW (Adoption: Surrogacy)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Court | Family Division |
JUDGE CALLMAN
Adoption – surrogacy – mother agreeing to bear child following artificial insemination by donor – arrangement made whereby mother agreed that father and his wife would adopt the child – mother changing her mind after birth of child – whether wife a "relative" of the child – whether payments to mother in breach of Adoption Act – whether adoption should be made.
Surrogacy – mother agreeing to bear child following artificial insemination by donor – mother agreeing that father and his wife would adopt child – payments made to mother – no adoption agency involved – whether adoption order should be made.
By an arrangement, described as a memorandum of understanding under the Surrogacy Arrangements Act 1985 and which was dated 18 April 1991, the applicants for an adoption order, who were husband and wife, agreed with the mother that she would bear a child by the impregnation of her own egg with the sperm of the husband by way of artificial insemination by donor and that the mother would agree to the child's adoption by the applicants. The mother was advised by a solicitor at the time of entering into the arrangement. In accordance with the terms of the arrangement the mother received £7,500 by way of expenses paid in three instalments during the pregnancy. The child was born in January 1992. He was handed over to the applicants within a few days of his birth and had been in their constant care ever since and had prospered and flourished.
After the child was handed over to the applicants there was a conflict between the mother and the applicants as to contact. She applied to the court for contact and opposed the adoption.
Held – As the arrangements for adoption were not made by an adoption agency the applicants were in breach of s 11(1) and (3)(c) of the Adoption Act 1976 because the wife, as a step-parent, was not a relative within the meaning of that section. Further, the applicants were in breach of s 57 of the Act which provided that payment in consideration of adoption was unlawful. However, in reaching any decision relating to the adoption of a child, s 6 of the Act required the court to have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood. The child had been with the applicants for two-and-a-half years. There had been nothing but favourable reports in respect of the applicants and their care
of the child (except from the mother who had a vested interest). In the circumstances the court was not precluded by the breach of s 11 from making an adoption order, and would exercise its discretion under s 57(3) to authorize the making of payments retrospectively. Although the mother had withdrawn her agreement to adoption, the advantages of adoption for the welfare of the child were strong enough to override the views and interests of the objecting parent. The child having been with the applicants for two-and-a-half years, moving him would not be in his interests. The mother's withholding of agreement was not what a reasonably objective parent would want to do for her child. In those circumstances the mother's agreement would be dispensed with and an adoption order made. The circumstances of this case were such that it was not appropriate to order contact and an order would be made that there should be no contact with the mother during the child's minority.
Statutory provisions referred to:Adoption Act 1976, ss 6, 11, 13, 50, 57 and 72.
Cases referred to in judgment:Adoption Application No AA/216/86 (Surrogacy) [1987] FCR 161; sub nom Re Adoption Application (Payment for Adoption) [1987] Fam 81; [1987] 3 WLR 31; sub nom An Adoption Application (Surrogacy) [1987] 2 All ER 826.
AW (Adoption Application), Re[1992] 2 FCR 641.
C (A Minor) (Adoption Application), Re[1992] 1 FCR 337.
C (A Minor) (Adoption Order: Conditions), Re [1988] FCR 484; [1989] AC 1; [1988] 2 WLR 474; [1988] 1 All ER 705.
Featherstone v Staples [1986] 1 WLR 861; [1986] 2 All ER 461.
W (An Infant), Re [1971] AC 682; [1971] 2 WLR 1011; [1971] 2 All ER 49.
ZHH (Adoption Application), Re[1992] 1 FCR 197.
The Hon Clare Renton for the applicants.
Victoria Baum for the local authority.
Gordon Murdoch for the Official Solicitor.
The mother appeared in person.
JUDGE CALLMAN.In this case I am dealing with applications by Mr W and Mrs W (which are adoption applications) in respect of M who was born on 31 January 1992. He was the result of an arrangement entered into between Ms A (I will call her hereafter "the mother") and the applicants (whom I will call hereafter "the applicants"). So far as Mr W is concerned, I will describe him hereafter as "the father" and I will describe Mrs W hereinafter, for technical reasons, as "the step-mother".
The applicants entered into an arrangement with the mother through an organization called Children Obtained Through Surrogacy (COTS). That is an organization that deals with surrogacy, a concept and arrangement that is not recognized by law and so far not regulated by the law of England. The facts were that as a result of the introduction through COTS, the applicants met the mother
and they in due course agreed that the mother would carry a child which was the result of the use of her own eggs and impregnation by AID by the father. An arrangement was entered into, described as a memorandum of understanding under the Surrogacy Arrangements Act 1985, and that document, which was dated 18 April 1991, was in fact seen by two solicitors. Obviously, it was...
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