21 May 2015

Pseudo Surrogacy Arrangements in England and Wales


5 things you ought to know…. The case of H&B v M [2015] EWFC 36, which hit the headlines recently is a stark reminder of the need to obtain sound legal advice, even when seeking legal advice is, perhaps, the last item on your agenda. Given the fact that commercial surrogacy agreements are not permissible in law in England and Wales, individuals and many couples in England and Wales are increasingly turning to informal arrangements in planning for a family. Such couples and individuals often encounter immense problems once a child is born and reality sets in and without a good understanding of the legal implications in family law, the consequences can be catastrophic. In fact, one eminent High Court Judge has recently warned of the 'ticking time bomb' in the UK with large numbers of parents failing to obtain proper legal protection for their children. It sounded good in theory….In this case, the mother and father had known each other for many years. The mother had been married and divorced and had two teenage children. The father and his same sex partner wished to start a family, an informal 'surrogacy' arrangement was made and a baby daughter was born in January 2014, following the mother impregnating herself with the father's sperm whilst at home. But in reality…..It became clear following the baby's birth that there was a fundamental disagreement as to who was to be the primary carer for the child. The mother's case was that she and the father were to behave as separated parents and that she would look after the child but he would spend time with her. However, the father understood that he and his partner would care for the child and the mother would have a 'subsidiary but active' role in her life. In the face of such vastly opposing positions, it was for the court to decide what should happen next. The father and his partner made their applications shortly after the child was born and the final hearing took place in 2015. During the intervening 14 months the child lived with her mother and contact with her father and his partner was sporadic. And the Court had to decide what was best for baby…following a thorough investigative 5 day hearing, the judge made the difficult decision that it was in the child's best interests to live with her father and his partner and to have supervised contact with her mother. So what can we learn from this case and from other family law cases in this arena? 1. Get specialist family law advice. Commercial Surrogacy is a criminal offence in England and Wales and no money, other than expenses reasonably incurred, can be paid. Informal surrogacy arrangements are not regulated in the same way that formal surrogacy arrangements are, under the Human Fertilisation and Embryology Act 2008 (HFEA 2008). This does not mean that surrogacy arrangements cannot and do not take place — they can and they do, but the legal principles relating to the welfare of the future child always apply. 2. Be aware that no surrogacy agreement is enforceable by or against anyone in breach of it. This is because a fundamental principle in any private law children proceedings is that the welfare of the child is paramount. The court remains entirely focussed on what is in the child's best interests. In the recent case of This principle is also aptly illustrated by the case of E-R (A Child) [2015] EWCA Civ 405, which, though not a surrogacy case, involved a mother's application for her 2 friends to become special guardians and to take care of her child following her imminent death. The father, who had not seen the child for 2 years, applied for the child to live with him, and the judge at first instance agreed. However, the Court of Appeal found that the judge had erred in law when applying a presumption in favour of the natural parent. There is no such presumption, it is simply one of the factors to take into account and the case was referred for rehearing and a more comprehensive welfare report. 3. Know your legal status – parental status is not automatic. 'Commissioning' couples or individuals do not have parental status unless strident criteria of the HFEA are complied with. If those criteria have not been met, then they have to apply to the court for a parental order. At a glance: (a) A woman who is carrying an embryo, whether or not it is her egg, is treated in law as the mother of a child; (b) If the mother is married at the time of the treatment and her husband consented to the artificial insemination, then her husband is the legal father of the child; © If the mother is not married, the HFEA conditions need to be met for a man providing sperm to be treated as a parent (this includes insemination taking place through a licenced clinic). (d) In all other circumstances, commissioning couples or individuals are not legal parents, in the absence of the HFEA criteria being met, and so have to apply for a parental order in relation to the child; (e) The male or female partner of a man providing sperm cannot be a legal parent without a court order. 4. Think about the medium and longer term, not just the short-term. The role you may want to play in the child's life may not be supported by parental legal status. For example, parental orders can only be made for couples and not individuals under the current law, as highlighted by the recent case of B v C [2015] EWFC 17, whereby a 20+ man entered into a surrogacy arrangement with his mother (with the consent of this father). In this (legally complex) case, an adoption order was ultimately made in the man's favour. 5. The English Court will put the welfare of the child first and that will rank above informal agreements and hopes for a family and even biological connection. Remember: (a) The welfare of the child is paramount (b) There is no presumption in favour of natural parent — each case is determined upon an examination of its own merits and of the individuals involved. © Agreements can be revisited — what is in a child's best interests may vary over time, and therefore it is not possible to make an agreement that is not capable of variation. (d) Unless there are exceptional circumstances the court expects both parties to promote a positive and healthy view of the other parent/carer. There is now a rebuttable statutory presumption that involvement of both parents will further a child's welfare. Each party should encourage and facilitate the child's relationship with the other parent — if the court believes that one parent is trying to belittle, or worse still damage, a child's relationship with their parent, there are likely to be serious repercussions. So, in this changing world where families come in all shapes and sizes, whatever the family issue, and however awkward it may seem, it is important and makes sense to seek family law advice at the earliest opportunity. Natalie O'Shea and Jemma Thomas Professional Support Lawyers

Category: Blog