10 December 2018 - Article
Arrangements made and implemented abroad Commercial surrogacy arrangements are not permissible in law in England and Wales. However, there are various other jurisdictions where such arrangements are legal, and it is not therefore uncommon for those seeking such arrangements to travel to those jurisdictions and enter into surrogacy arrangements there. Before making those decisions, the commissioning parents will undoubtedly obtain legal advice in that jurisdiction as to the steps that they need to take and the legal implications. Once the baby is born, the agreement has been complied with, and the birth has been registered with the names of the commissioning parents as the parents (rather than the surrogates), the new family will return to the UK. However, they may go through this entire process without investigating the legal implications in this country, and therein lies the danger. Implications at home In the recently reported decision of Re A and B (No 2 Parental Order)  EWHC 2080 (Fam) Mrs Justice Theis DBE voiced her concerns over misunderstandings as to the status of commissioning parents who have entered into surrogacy arrangements outside of the UK. She said that 'There is a real risk that those who care for children born as a result of these arrangements may be inadvertently sleepwalking into an uncertain legal future for their much wanted child.' In that case, and another reported earlier this year (G v ED, DD, A B (by their children's guardian)  EWHC 911), the commissioning parents had assumed that the fact that they are registered parents on the birth certificates, and had complied with relevant legal requirements where the child was born, meant that they were there legal parents here as well as in that jurisdiction. In fact under English law the surrogate mother and her husband are deemed to be the parents unless and until there is a parental order. The Commissioning parents are not the parents under UK law (despite the fact that the fathers in both cases were the children's biological fathers). This obviously has significant implications, not just in terms of the children's identity, but also legally. For example the commissioning parents cannot appoint a guardian to take care of the children on their death and the children will not have rights to inheritance, pension entitlement or financial support in the event of their parents' separation. Parental orders A parental order, if made, results in the commissioning parents becoming the child's legal parents and extinguishes the surrogate mother's status as the child's legal mother, together with her husband and any other legal parent. A parental order provides the child with a British birth certificate confirming his parentage, which will not reference the assisted reproduction, only that the commissioning parents are his parents. It was created so as to meet the children's welfare needs for the whole of their lives extending, not just forward, but also retrospectively from birth until death. If the application for a parental order is made within 6 months of the child being born then it is relatively straight forward. However, in these 2 cases the parties involved were not aware of the need to have a parental order (or the significant implications of not having one) until the children were much older, and so the deadline had passed. In Re A and B the children concerned were 3 year old twin boys, and in G v ED, DD, A and B, the children were 8 and 5. The court's approach Fortunately, the courts took a pragmatic and understanding approach, and ensured that the welfare of the children was their paramount consideration, and granted the parental orders. Both cases followed, and were inspired by, the decision of the President of the Family Division in the case of Re X  EWHC 3135. However, they involved a detailed discussion of the life-long welfare of the children, retrospective authorisation of payments made to the surrogate mother, and an analysis of the relevant Human Rights – UK law must be interpreted so as to be compatible with their rights. The court also had to consider public policy; ensuring that the parties have acted in good faith, and that there was no prejudice to the surrogate parents. As Hedley J said in re S  EWHC 2977 “The court should be astute not to be involved in anything that looks like the simple payment for effectively buying children overseas. That has been ruled out in this country and the court should not be party to any arrangements which effectively allow that.). The decisions were far from straight forward, and the process must have put enormous pressure on those involved. Indeed in Re A and B there were concerns as to whether the parents could meet the children's emotional needs, but the judge felt it likely that once the proceedings had concluded the parents would be able to re-focus their attention on the children. Are adoption orders as an alternative? In G v ED, DD, A B there was an interesting discussion as to whether an adoption order would be the right remedy in these circumstances. Mrs Justice Russell said that although in practical terms whether a parental order or adoption order is made does not make much difference, parental orders were tailor made for surrogacy arrangements on the basis that there is a genetic link between the child and the commissioning parents, and the government did not feel that the full range of assessments an checks necessary to adopt were appropriate. She also referred to the children's view that they would prefer parental orders and did not think adoption orders were appropriate to their situation. In terms of identity, only parental orders recognise the children as the applicants' natural children. Munby P in Re X said that adoption is not as attractive when there is an existing biological relationship between the applicant father and the children. These parents were the children's planned and intended parents from before conception and since the day that they were born. ‘All of these facts, fundamental to those children's very existence and identity are far from those present in adoption.' Parental orders give them ‘whole of life' identity as members of the applicants' family and will enable their births to be registered, rather than giving them adoption certificates. In both cases, despite the missed deadline and (in Re A and B that the parents were now separated) the court decided that Parliament could not have intended that a designation as important as legal parenthood should be denied to these parties. Lessons to learn Ultimately in the cases referred to the end position was the same as if the deadline has been met. However, it must have been a long and gruelling process for those involved. The lessons to be learnt are clear: do not make assumptions about what the law is, and always obtain advice from all the relevant jurisdictions. These cases are examples of both the best but also the most frightening aspects of family law: the best because the court was able to interpret the law to ensure an outcome that was in the best interests of the children — and ensured that their welfare was what mattered; but frightening because often in family law cases people simply assume that they know or understand the law, and are left vulnerable when, had they taken advice, they could have been protected.