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4: INTERNATIONAL PROCREATION AND PARENTHOOD
1. INTERNATIONAL SURROGACY (i) THE POSITION IN ENGLISH LAW Human Fertilisation and Embryology Act: s 54 Parental orders (1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if---
(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and (c) the conditions in subsections (2) to (8) are satisfied. (2) The applicants must be---
(a) husband and wife, (b) civil partners of each other, or (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other. (3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born. (4) At the time of the application and the making of the order---
(a) the child's home must be with the applicants, and (b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man. (5) At the time of the making of the order both the applicants must have attained the age of 18. (6) The court must be satisfied that both---
(a) the woman who carried the child, and (b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43), have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. (7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth. (8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of---
(a) the making of the order, (b) any agreement required by subsection (6), (c) the handing over of the child to the applicants, or (d) the making of arrangements with a view to the making of the order, unless authorised
by the court.
RE X AND Y (FOREIGN SURROGACY) 2008 FACTS
? Ukrainian surrogate mother given monthly payments of 235 pounds and a lump sum of 25,000 pounds for a live birth ISSUE
? Should a parenting order be made or was this contrary to s 54(8)?
? Where a court is faced with such a scenario, 3 questions (HEDLEY J) should be asked: 1) Was the sum paid disproportionate to reasonable expenses?
2) Were the applicants acting in GF and without moral taint in dealing with the surrogate mother?
3) Were the applicants party to any attempt to defraud authorities?
? BIC to be primary consideration: o 'I find this process of authorisation most uncomfortable. What the court is required to do is to balance two competing and
potentially irreconcilably conflicting concepts. P is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration. Yet it is also recognized that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (ie. the child) that rigour must be mitigated by the application of a consideration of that child's welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circ's in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order'
? Parenting order granted
? This case is important bc it shows the way in which the courts are having to grapple with conflicting public policy vs. interests of the child; court stretching the application of s 54 factors in order to authorize parental orders being made, despite being contrary to domestic legislation
? Given the weight placed on the child's BIC, arguably the court's ability to refuse the making of a parental order even in the face of evidence going against s 54 factors is undermined
? *Note: this case was heard prior to the 2010 legislative changes which elevated the welfare of the child to be the paramount consideration and therefore public policy and welfare carried equal weight at the time
A V P (SURROGACY: PARENTAL ORDER - DEATH OF APPLICANT) 2011 FACTS
? Couple commissioned a surrogate to bear child but husband died in between the time of the lodging the application of the parental order and the time of the hearing before the court
? s 54(4)(a) required that there be two commissioning parents at time of application and hearing for parenting order and there was also doubt as to the genetic link between mother and child (s 54(1)) ISSUE
? Should a parental order be granted given the fact that the husband had died? (s 54(4)(a)) REASONING
?????Requirements of s 54 must be interpreted in a way that is (THEIS J) consistent with the best interests of the child
? There is no other combination of orders that would recognise the child's status with the applicant and her deceased husband equally
? The child's home from the time of birth until the husband's death had been with the couple and apart from his death he would have remained in the care of both parents
? Parental orders have implications for ECHR A8: not making a parental order would be an interference with the family life of the child in that the factual relationship between child and parents would not be recognized by law
? There is an obligation on the court to guarantee rights are practical and effective (cf. theoretical/illusory)
? Reliance also on A7 of UN Convention on the Rights of the Child, arguing this Convention requires the state to protect the child's right to identity, including the legal recognition of a relp between child and parents
? A7 nationality point and being brought up by the parents A8
? Court is bound to take a purposive construction of s 54(4) DECISION
? Parenting order granted IMPORTANC
? This case again shows the way in which the court's have been
willing to stretch the factors in s 54 and to allow parenting orders to be granted
? Interesting use of ECHR and UNCRC in this case in interpreting s 54 requirements and allowing for the parental order to be made
? Purposive reading reading down natural meaning of the words here
? *Query: is a particular view of identity being promulgated by the court? Is there too much emphasis being placed on the biological link?
RE D AND L (MINORS) (SURROGACY) 2012 FACTS
? Court tries to contact the surrogate mother at the time of the hearing to gain her consent to the commissioning parent's application for a parenting order but the surrogate mother cannot be found
? Her consent had been given less than six weeks after the birth (ie. contrary to s 54(7) ISSUE
? Should a court grant a parenting order where the surrogate mother's consent cannot be given after the birth bc she cannot be located by the court?
? Can the court take prior consent into account?
? Although the prior consent was not valid for the purposes of s (BAKER J) 54(7), judge decided he was entitled to take into account evidence that consent had been given at an earlier time
? Cautioned that importance to be attached to such consent must be limited and said he gave little weight to it DECISION
? Parenting order granted IMPORTANC
? This case shows the difficulty in applying the s 54 factors; E particularly in cases where the mother cannot be located ? question whether or not consent can adequately be given if the mother cannot be located and whether or not previous consent should be taken into account where there is no consent in the aftermath of the birth?
RE X (A CHILD) (SURROGACY: TIME LIMIT) 2014 FACTS
? Child born under surrogacy agreement in India in Dec 2011 and commissioning parents were living in India at the time and cared for the child since birth
? In July 2013, they returned to the UK and separated and then the father sought a residence order under the Children Act 1989 ?
the issue was that the parents had never made an application for a parental order which meant the surrogate parents were the legal parents and neither the commissioning mother or father had parental responsibility for the child
? This was in breach of s 54(3) which states that a parental order application must be made within 6 months of the child's birth but commissioning parents argued they were not aware of the requirements and were ignorant of the need to obtain a parental order and were ignorant of the time limit
? *Note: Hedley J in Re X and Y had addressed the time-limit in s 54(3) and determined that it was non-extendable and King J in Re JP v LP had held a parental order could not be granted in respect of a child of 33 weeks ISSUE
? Should the parental order be made despite the delay in breach of s 54(3)'s time limit?
? The precedent that had been set with respect to the time limit (MUNBY P) was incorrect ? the court not only had a power to extend the time limit but was required to use it in the interests of the
welfare of the child
? 'Can P really have inteded that the gate should be barred forever if the application for a parental order is lodged even one date late? I cannot think so. P has not explained its thinking but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that P intended the difference between 6 months and 6 months and one day to be determinative and one day's delay to be fatal? I assume that P intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to consture s 54(3) as barring forever an application made just one day late is not in my judgment sensible. It is the very antithesis of sensible; it is almost nonsensical'
? Referred to innocent reasons that might result in noncompliance with the time limit (eg. solicitor miscalculating deadline; legal executive delayed in traffic jam and arriving to court after it had closed; commissioning parents being in a coma)
? The fact that it was mere ignorance that stopped the parents applying was deemed irrelevant
? Court was bound to adopt a 'more liaberal and relaxed' approach to interpreting the time limit, particularly as the parental order goes not just to status but to the identity of the child as a human being and will have an impact on the child for decades
? Even if the statute couldn't be interpreted in this way, the making of the parental order was justified in the alternative by relying on A8 ? the statute must be read down to ensure the essence of the protected right (to identity) was not impaired
? Parenting order granted despite the lack of compliance with the time limit
? This case can be used as an example of the court's applying a liberal reading to the s 54 factors in order to do justice for the child
? Also important to note that the court is referring to A8 (possibly as a result of Mennesson/Labassee)
RE G AND M 2014 FACTS
REASONING (THEIS J)
? The applicants (BB and BD) enter into a commercial surrogacy arrangement with AM who gives birth to twins in Iowa (one child is related to either biological father)
? They then follow 5 steps in Iowa (legal process) in order to secure their legal position as the parents of the children and to fulfill the terms of the surrogacy arrangement in extinguishing AB's legal relationship/responsibilities with respect to the children
? Application for parenting order made but issue with the fact that both applicants are domiciled in France and only recently moved to the UK (issue for s 54(4)(b)) as well as potential breach of s 83 of the Adoption and Children Act 2002 by complying with the 5-step legal process in Iowa
? Could the parenting order be granted despite the fact that neither applicant was domiciled in the UK and there had potentially been a breach of s 83?
Did the breach of s 83 of the ACA block the parental order from being made?
? Applicants had in reality little option but to comply with the 5-step process in Iowa as it was clearly in the children's interests for the commissioning parents to secure their legal position in Iowa regarding both children and they needed to do so to fulfill their obligations under the surrogacy agreement
Following the procedure also enabled them to secure immigration clearance to bring the children back to the UK o Unaware that in doing so they were in breach of s 83 as they had brought children into the UK without having gone through the required procedures of having undertaken adoption abroad
? Important to highlight this issue as intended parents who were about to embark on similar arrangements in the US may wish to take advice in the early stages when selecting surrogate mothers and considering whether the state in which the child is going to be born requires the same process as was required in Iowa bc this would place them in violation of s 83
? Important to highlight this issue to the Dept of Health so they can consider whether this situation was intended to be caught by s 83
? Satisfied steps were taken bc best way of securing legal relationship with children, on the basis of legal advice and done in good faith and no reason to block the parental order Authorisation of the financial aspects
? 20,750 paid to the agency ? element of profit ok bc it is a commercial organisation operating lawfully within the legal framework of Iowa and no significant difference in respect of payments made to other agencies that have been approved in other cases
? Payment of 38,950 to surrogate mother ? sum was not so disproportionate and the applicants had acted in GF; sum not significantly different and applicants done everything to comply with regulatory requirements in US and UK and had acted in GF and therefore the sum should be authorised Did it matter than neither applicant was domiciled in the UK as required by s 54(4)(b)?
? Accepted that applicant's domicile of origin is France but the applicants argument that they have abandoned their domicile of origin and acquired a domicile of choice here in the UK has been proven by the applicants on the BOP
? This is a question of fact ? the question is whether the applicants have showed an intention to live in the UK permanently/indefinitely and the fact that they just moved here is only a factor to be taken into account which must be looked at in the context of all of the other factors
? Contextual factors show the applicants did have an intention to make the UK their permanent and indefinite home: o Sold their primary residence in France and purchased property in the UK (although retained 2 properties in France one was a beach house and one was a flat being rented out) o Both have long-term, permanent employment and pay tax and national insurance (one has filed a tax return and has told the tax authorities in France he will no longer be a French resident and contributes to a UK pension plan) o Both have bank accounts; have registered their children at bilingual schools and have registered with GP's o Their motive is the difference in societal attitudes in relation to same sex couples bringing up children Welfare
????? In the BIC of the children to make the parental order (paramount consideration under s 1 of the ACA): 'entirely satisfied that the child's lifelong welfare needs can only be met by their legal relp with the applicants being on the securest footing possible, and that can only be achieved by the court making a parental order' o
? Parenting order granted bc both applicants domiciled in UK (bc of their intention to make the UK their home) and no reason to refuse parenting order on the basis of breach of s 83 given the fact that the applicants were acting in GF and in BIC in complying with the legal requirements in Iowa in relation to the commercial surrogacy arrangement and in BIC of the child to make the parenting order
? Case can be used again as an example of the way in which courts have been willing to liberally interpret the mandatory requirements in s 54 in making a parental order in relation to surrogacy arrangements ? this case related to the domicile requirement and also disregarded the fact that the applicants may have been in breach of s 83 due to their following the legal processes in Iowa
RE Q (A CHILD) (PARENTAL ORDER: DOMICILE) (ALSO CALLED CC V DD) 2014 FACTS
? Applicants (Mr and Mrs C) are commissioning parents of Q (born to surrogate mother in US)
? Q's biological mother is birth mother and Q's biological father is Mr C
? Applicants are married and living in France and unable to leave due to the nature of Mr C's business (Mrs C British and Mr C French)
? Application for parental order made ISSUE
? Could the application for the parental order be made despite the fact that applicants were living in France (domicile issue s 54(4) (b))?
? Was s 83 of the Adoption & Children Act breached and if so would this block the parental order being made?
? Should the court authorize the payments made (s 54(8))?
REASONING s 83 and the legal steps taken to ensure the applicants' status as Q's legal (THIES J) parents in Minnesota:
? No contravention of s 83 bc it is clear neither the applicant nor the child were habitually resident in the UK at the time the parental order was applied for
? The fact that an adoption was made in Minnesota does not and should not prevent the making of a parental order by the court
? In a case where a breach did occur, would be relevant to question whether applicants acted in GF relying on legal advice
? Curious that in this case Ms C is already treated as Q's mother by virtue of the US step parent adoption order but Mr C despite being the biological father is not treated as parent
? Making the PO would serve the welfare of the child bc this will: o Confer legal parenthood on both parents, giving Q a British birth cert confirming his parentage, better reflecting his identity as a child of reproduction rather than an adopted child o Parental order is most suited to surrogacy situations as they give legal certainty to parents o Making the order makes Q British and gives British citizenship automatically s 54(4)(b): domiciled in the UK
? The primary function of a parental order is to transfer legal parenthood from the surrogate and husband to the applicants and such an order is concerned with parentage and status as opposed to parental responsibility and in this way a PO is more like an adoption order
? The principles regarding domicile of origin/choice:
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