Re X and another (Children) (Parental Order: Foreign Surrogacy)

JurisdictionEngland & Wales
JudgeThe Hon. Mr. Justice Hedley
Judgment Date09 December 2008
Neutral Citation[2008] EWHC 3030 (Fam)
Docket NumberCase No: FD08P01466
CourtFamily Division
Date09 December 2008
Between
Re X & Y
Applicant
and
(foreign Surrogacy)
Respondent

[2008] EWHC 3030 (Fam)

Before :

The Hon. Mr. Justice Hedley

Case No: FD08P01466

IN THE HIGH COURT OF JUSTICE FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Miss Lucy Theis, Q.C. (instructed by Lester Aldridge LLP) for the Applicants

Mr Michael Sherwin, Solicitor (instructed by , McMillan Williams Solicitors) for the children

Hearing dates: 18 th July, 2008, 19 th August, 2008 and 5 th November 2008

This judgment is being handed down in public on 9 th December 2008 It consists of 13 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.

The Hon. Mr. Justice Hedley
1

Although the outcome of this case was in the end happy for all those involved, it provides a cautionary tale for any who contemplate parenthood by entering into a foreign surrogacy agreement. It is for this reason that I have adjourned judgment into open court but no matter must be reported that might reasonably lead to the identification of the children, the subject of these proceedings, or their family. On 5 th November 2008 I made a Parental Order pursuant to Section 30 of the Human Fertilisation and Embryology Act 1990 (the 1990 Act) in favour of both applicants but reserved my reasons to be handed down in writing subsequently. This I now do.

2

The applicants are an established and successful professional couple. They have for many years explored different avenues to parenthood. They have at all times faithfully sought to comply with both the letter and spirit of the law. Thus it was that they came to explore an overseas surrogacy arrangement. It has resulted in enormous delay, stress and expense: the path to parenthood has been less a journey along a primrose path, more a trek through a thorn forest. The court shares their hope that their experiences may alert others to the difficulties inherent in this journey.

3

Surrogacy remains an ethically controversial area and different societies and different nations take radically different stances in their approach to it. Under some legal systems (e.g. Italy, Germany, Turkey) it is simply prohibited. In others, commercial surrogacy agreements are permitted (e.g. California, Ukraine, India) and perhaps sometimes even encouraged. The position in the United Kingdom lies between those extremes: whilst commercial surrogacy is unlawful, surrogacy itself is not but no surrogacy agreement is legally enforceable as such. Each sovereign state will have its own preferred approach and its own regulatory system. Those who enter into surrogacy agreements abroad will have to take account both of the law of that state and of the United Kingdom. As this case vividly demonstrates, not only may (and probably will) those laws be different but they may be incompatible to the point of mutual contradiction.

4

The salient facts of this case may be shortly and rather generally stated both to avoid risk of identification and because that is all that is necessary to identify and understand the issues in this case. After exploring many parenting options in this country and upon what appeared to be informed and responsible advice, the applicants decided to explore surrogacy in the Ukraine. Their enquiries revealed apparently admirable medical facilities, skilled English language advice and a readiness to assist. They were introduced to possible surrogate mothers. In the end they entered into an agreement with a married Ukrainian woman who had had her own children and had been interested in being a surrogate for her own sister. In the end the sister had become pregnant naturally and this woman had then decided to offer herself as a surrogate mother for another. Terms were discussed, to the details of which I will have to return. Suffice it to say at this stage that the terms agreed covered her expenses, compensated her for loss of earnings and would permit her to put down a deposit for the purchase of a flat in the place where she and her husband worked. The Ukrainian woman was implanted with embryos conceived with donor eggs (the donor being anonymous) and fertilised by the male applicant's sperm. The relationship between the parties ripened into friendship. In due course she conceived and gave birth to twins. Then the real trouble started, none of it caused by either the surrogate mother or the applicants.

5

In order to understand the problem, it is necessary to say something about both English and Ukrainian law. Section 27 of the 1990 Act provides (so far as is material) as follows:

“(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child…..

(3) Subsection (1) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs.”

It is clear (and accepted on all sides) that the effect of the provision is that in English law the Ukrainian woman (although biologically unrelated to the twins) is for all purposes the sole legal mother of these children.

The position as to who is the legal father of these children is controversial between the applicants on the one hand and the children's guardian (appointed for the purposes of the Section 30 application) on the other. It is, however, agreed that the position is to be determined in accordance with Section 28 of the 1990 Act. The material provisions are these:

“(2) If –

a) At the time of the placing in her of the embryo or the sperm and eggs…., the woman was party to a marriage, and

b) ….. then, subject to subsection 5 below, the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs…..

(4) Where a person is treated as the father of the child by virtue of subsection (2)…..above, no other person is to be treated as thefather of the child.”

It is common ground that the Ukrainian woman's husband acquiesced to the surrogacy and, if subsection (2) applies to him, he is in English law the sole father (although again biologically unrelated) of these children. It is further common ground that the male applicant is the biological father of these children and, had the Ukrainian woman been unmarried, that he would be entitled to be treated as the father of them. The guardian contends that subsections (2) and (4) apply, the applicants contend that they do not because the court should not apply the subsections extra-territorially. The provisions of Sections 27 and 28 are further underpinned by those of Section 29(1) and (2), the effect of which is to apply the statutory parenthood for all purposes, and, where parenthood is not given, to apply that also for all purposes.

6

Thus the guardian's submission is that the Ukrainian woman and her husband are the exclusive legal parents of these children and that therefore: (i) the consent of both is required under Section 30(5) of the 1990 Act; and (ii) the male applicant has no right to apply for any order under Part II Children Act 1989 unless he has first obtained the leave of the court pursuant to Section 10 thereof. The applicants contend that only the consent of the surrogate mother is required under Section 30(5) of the 1990 Act, and that the male applicant is a parent for the purposes of Part II of the 1989 Act. Because these difficulties were foreseen in this case, in fact the Ukrainian husband's consent was obtained and the applicants were given leave under Section 10 of the 1989 Act (and interim Section 8 Orders made) so as to regularise the position pending the final hearing of the Section 30 application.

7

I should mention here a further argument addressed to me on behalf of the applicants namely that they were entitled to apply for a residence order by virtue of Section 10(5)(a) of the 1989 Act as these children should be treated as 'children of the family' as defined in Section 105(1) of that Act, “…..(b) any other child…. who has been treated by both of them as a child of the family.” Whilst I see the attraction of that argument, I have serious doubts as to whether children who are in law 'strangers' can simply become 'children of the family' because for a short time the parents have so acted. However, any definitive ruling must await the case where such a decision must be made and the point argued on both sides.

8

The court was provided with expert evidence of Ukrainian law. Consequent upon perusal of that evidence (and uncontroversially as between the parties), I find that the consequences of the application of Ukrainian law are that once the surrogate mother had given birth to the twins and delivered them to the applicants, she and her husband were free of all obligation to the children. They had neither the status nor the rights and duties of parents; indeed it seems that they could probably have been compelled under Ukrainian law to complete the surrogacy agreement once the children had been born. Moreover, the children had no rights of residence in or citizenship of the Ukraine and there was no obligation owed them by the state other than to accommodate them as an act of basic humanity in a state orphanage. The applicants became the parents for all purposes under Ukrainian law and were registered as such on the birth certificate. The children accordingly took their parents' nationality and were not therefore Ukrainian citizens.

9

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