Parenthood

Andrew Bainham argues we must distinguish between

Parentage (genetic linkage).... Parenthood (caring/acting as a parent)

Leading case: Re X [2008] EWHC 3030 (Fam)

Was sum paid disproportionate to expenses? Questions for the court - was the amount paid • An affront to public policy? • Overbearing the will of the surrogate? • Permitted in the relevant jurisdiction? • c/f relevance of standard of living & context? Were the applicants acting in good faith? And without moral taint? Was there any attempt to defraud the authorities? And, the Welfare Principle, of course. • E.g., thinking of 'lifelong security' for the child, who might otherwise fall into a 'legal vacuum', i.e. no legal parents, possibly only a RO [now CAO] to keep him with 'parents' ~ see AB v DE [2013] EWHC 2413 (Fam)

Sir Stanley Burnton in Newbold and others v Coal Authority [2013] EWCA Civ 584, [2014] 1 WLR 1288, at para 70, Sir Stanley Burnton:

"In all cases, one must first construe the statutory ... requirement in question. It may require strict compliance with a requirement as a condition of its validity ... Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute ... , in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation ... would have intended a sensible ... result."

Common law definition of motherhood : Ampthill Peerage Case [1977]

"the woman who gives birth to the child is the child's genetic mother and thus legal parent"

Baroness Hale in Re G (Children) (Residence: Same-Sex Partner) distinguished three key elements of parenthood:

(1) Legal Parenthood (who in law is the parent) o (2) Genetic Parenthood (whose sperm and egg created the child) o (3) Social Parenthood (who carries out the day-to-day nurturing of the child) - Hale placed weight on the biological link which only one of the two women had - is this right? - Talks about the significance of biology - Hale - on facts on particular case - both women had paid same level of attention to the child and due to facts it would be impossible to have shared residence - so the gestational link was essentially a tie breaker

54Parental 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. (9)For the purposes of an application under this section— (a)in relation to England and Wales [F1— (i)"the court" means the High Court or the family court, and (ii)proceedings on the application are to be "family proceedings" for the purposes of the Children Act 1989,] (b)in relation to Scotland, "the court" means the Court of Session or the sheriff court of the sheriffdom within which the child is, and (c)in relation to Northern Ireland, "the court" means the High Court or any county court F2.... (10)Subsection (1)(a) 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 or her artificial insemination. (11)An application which— (a)relates to a child born before the coming into force of this section, and (b)is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife, may be made within the period of six months beginning with the day on which this section comes into force.

Can Parliament really have intended that the gate should be barred forever if the application for a PO is lodged even one day late?

- Answer: 'I cannot think so.' - 'Barring forever is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.' - But, if he's wrong, he determines that the same result can be achieved, and justified, by reference to Convention rights under ECHR. i.e., Art 8 'private life' including 'identity' (if not also 'family life') - Every case = fact specific. - Also - consider result if no order made.... Immediately influential judgment... Applied in: • AB & CD v CT [2015] EWFC 12 - Brief case note on BB - more than 3 year delay before PO application.... • D v ED [2015] EWHC 911 (Fam) - extensive time period (five years) • Re A and B (No 2 Parental Order) [2015] EWHC 2080 (Fam) - app made 17 months after expiry of 6 month limit • The jurisprudence shows that each case must be considered on its own facts. Child's welfare throughout their lives, the paramount consideration....

G v G [2012] EWHC 1979 (Fam)

- Baby born as a result of a surrogacy arrangement. Commissioning couple split up when the baby was about 8 moths old... - Despite lots of issues with the PO application (criteria and procedure), order made - Father made an application to to set aside PO because of the procedural flaws and said Court had been misled (by W) re stability of applicants relationship - No previous case-law on setting aside POs, so court looked at setting aside of adoption orders - welfare of the child throughout their life and the consequence of no PO, so although some sympathy for the Father given the level of deception of the wife, the PO was not set aside....

Development of the law: Re X [2014] EWHC 3135 (Fam)....

- Child born in India: donor eggs & H's sperm, to surrogate, in Dec 2011; came to UK July 2013 on British passport. All arrangements made through clinic in India... - Parents split up in June 2013 (but no divorce) - reconciled in June 2014 - but when F sought RO for child, judge noticed that there was no parental order, and therefore neither 'parent' had Parental Responsibility either. - Parents unaware that parental order needed. - And the child was by this time, 2 years and 2 months old... • Question for Munby P was whether or not the time limit in s.54(3) was absolute? 3 routes: - Interrogated previous authorities (surrogacy) - Mandatory vs directory requirements ~ statutory interpretation & purposive construction - c/f intention of Parliament and HRs under the ECHR Nb. Bearing in mind no reason given in Parliamentary debates for a specific time limit, but some judicial comments re need for swift resolution of legal parenthood as undue delay in seeking applications would create uncertainty. • Purposive construction of the statute.... • Emphasises significance of PO - 'transformative effect' - • 'effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.' Theis J

- B v C (Surrogacy: Adoption) [2015] EWFC 17

- Child born, A - genetic son of B and an egg donor.... - Baby A was carried by surrogate mother, C after an embryo created from B and the egg donors gametes. - Complicating feature? The applicant man, 'B', is the child of C and her husband, D. In other words, the surrogate was 'mother' and genetically the'grandmother' of Baby A... Hence: - Guardian neatly summarised the case with its headline: 'Woman acted as surrogate mother for son's IVF baby, court hears'..... • 'The arrangement the parties entered into is not one, as far as I am aware, that either this court or the clinic has previously encountered, and although highly unusual, is entirely lawful under the relevant statutory provisions set out below' [8].

Re D & L (minors) (surrogacy) [2012] EWHC 2631

- Male couple living in England - Surrogate in India, commercial arrangement (at that time permissible in India, now prohibited...) - Mother's consent? Provided too early. Could not then be found. - Welfare of child could only be met by making order. If no order, the child would be a 'legal orphan', commissioning parents no legal status....

Parental orders (surrogacy): ****s.54 HFEA 2008 - enacted April 2010. 54Parental 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. (9)For the purposes of an application under this section— (a)in relation to England and Wales [F1— (i)"the court" means the High Court or the family court, and (ii)proceedings on the application are to be "family proceedings" for the purposes of the Children Act 1989,] (b)in relation to Scotland, "the court" means the Court of Session or the sheriff court of the sheriffdom within which the child is, and (c)in relation to Northern Ireland, "the court" means the High Court or any county court F2.... (10)Subsection (1)(a) 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 or her artificial insemination. (11)An application which— (a)relates to a child born before the coming into force of this section, and (b)is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife, may be made within the period of six months beginning with the day on which this section comes into force.

JK v Registrar General [2015] EWHC 990 (Admin) (no breach Art 8 & 14 where male transitioned to female was named as 'father' on cert)

1. This claim gives rise to important issues concerning the rights of transgender women, and their families, in particular the right to keep private the fact that they are transgender. 2. The Claimant, JK, is a transgender woman (male to female transsexual); and I shall throughout this judgment refer to her by the female pronoun. She has two naturally conceived children from her marriage to the Second Interested Party, KK, namely the Third Interested Parties, AK and PK. In this claim, she challenges the requirement that she be recorded as "father" in the children's birth certificates, and the refusal of the Defendant ("the Registrar General") to show her, by way of initial inclusion or amendment, as "parent" or "father/parent" on those birth certificates. 3. Before me, Dan Squires has appeared for the Claimant, David Wolfe QC for AK and PK (who, being minors, appear by way of the Official Solicitor as their litigation friend), and Ben Jaffey for the Registrar General and the Secretary of State. I thank them at the outset for their particularly helpful contributions. The Factual Background 4. The Claimant was born male, her birth certificate recording her name as CK (a male forename) and her sex as male. On 1 August 2007, she married KK. In early 2012, KK gave birth to a naturally conceived daughter, AK. The Claimant was the biological father; and, on AK's birth certificate, she was identified as the father, in the name CK. 5. However, by this time, the Claimant felt the desire to live as a woman; and, in April 2012, she was referred by her doctor to Nottingham Gender Clinic, where her first appointment was booked for 19 June 2012. In the meantime, on 10 June 2012, by deed poll, she changed her name to JK (a female forename), absolutely and entirely renouncing her former name of CK and the use of her former title "Mr" in favour of "Mrs". From that date, she has lived as a woman. 6. At the clinic, she was assessed and diagnosed with gender identity disorder and concomitant gender dysphoria. In October 2012, she started a course of feminising hormone treatment, which is on-going. The treatment pathway requires two years living as a female before consideration is given for referral for gender reassignment surgery. She is now on a waiting list for that surgery. 7. However, before the Claimant started feminising hormone therapy, KK fell pregnant a second time, again conceiving naturally by the Claimant. 8. On 15 September 2012, the Claimant wrote to the relevant local registrar for births asking whether, either immediately or at a time when the Claimant had been granted a Gender Recognition Certificate ("GRC"): i) AK's birth could be re-registered, with the new registration showing the Claimant's new name of JK, and with her identified as "parent" rather than as "father"; and ii) the registration of the second child, when born, could show that name and description. After the second child was born, Jackie and Kirsten went to the registry office to register the baby's birth and requested that Jackie be registered as the child's 'parent' or 'parent/father'. The registrar sought to enter Jackie's former name of Jack on the certificate, which was rejected by Jackie as she did not consider it was appropriate given her transition and the declarations in her deed poll. The registrar therefore completed the form listing Kirsten as 'mother' and Jackie as 'father'. In her claim Jackie contended that the requirement to show her as 'father' on the birth certificate of each of her children was a breach of her human rights. Jackie also sought to amend the first child's birth certificate so that she was recorded on the document as Jackie. In her case, Jackie said that she was very concerned by the embarrassment and distress that would be caused by the disclosure of her transgender status through the production of the birth certificate. The Official Solicitor on behalf of the children supported the claim on the basis that it would be in the children's best interests if their birth certificates did not reveal that Jackie was transgender. Mr Justice Hickinbottom heard the substantive application on 11 December 2014, and reserved judgment. Shortly thereafter it became clear that Jackie had disclosed all the information she was seeking to protect in her claim, through her Twitter and Facebook accounts. She had also been listed in a national newspaper, as a transgender activist. It is unclear the extent to which this influenced the final decision of the judge. Mr Justice Hickinbottom concluded that the requirement for a man, who changes gender to female, to be listed as 'father' on the birth certificate of a child was not a breach of that person's human rights. It has surprised many observers that Jackie was unsuccessful in recording herself as the mother of her child, particularly given that since 2009, it has been possible for two women to be entered as the parents on a birth certificate should they have a child with the aid of artificial reproduction such as IVF. Huge progress has been made in recent years for transgender people but this case evidences the fact that that there is still a long way to go to secure true equality and recognition. The legal framework The right to respect for private life A public authority in the UK may not act in a manner incompatible with a right enshrined in the ECHR (section 6 of the Human Rights Act 1998). Article 8(1) of the ECHR provides that a person has the right to respect for his private and family life, his home and his correspondence. Article 8 is a qualified right and is therefore capable of being subjected to interference by the state on lawful and necessary grounds, as reflected by article 8(2). Article 14 provides that the ECHR rights must be secured without discrimination, including discrimination on the basis of transgender identity (Goodwin v United Kingdom (2002) 35 EHRR 18 and PV v Spain (11 April 2011) (Application No 35159/09)). Registration of births JK claimed that article 8 requires there to be a scheme in place with respect to children of transgender parents to amend a child's birth certificate to appropriately reflect the identity and gender of that child's parents. Under the Births and Deaths Registration Act 1953 (the 1953 Act), a birth certificate can only be altered to correct minor errors or when parents marry or enter into a civil partnership following the birth (sections 29,14 and 14A of the 1953 Act). The Registrar has no discretion with respect to the categories recorded on the birth certificate (section 29 of the 1953 Act). Parentage can be recorded under the following categories: "child", "father", "mother" and "informant". After the passing of the Human Fertilisation and Embryology Act 2008 (the HFE Act 2008), parents who are not biological parents can be recognised for children conceived by assisted reproduction. For example, a man who is not the sperm donor can be treated as the "father" of the child, where "agreed fatherhood conditions" are met, the mother is not married, and both parties consent to the man being the "father". The term "parent" is used for arrangements where there is a second female parent. Part 2 of the HFEA 2008 and the Adoption and Children Act 2002 provides a scheme for the issuing of parallel birth certificates for children born through surrogacy and adoption cases, enabling children to obtain information about their biological parents upon turning 18. Decision Justice Hickinbottom dismissed JK's application on the basis that the interference with the article 8 right was not material and that, even if it was, the interference was justified as it fell within the state's margin of appreciation. As the interference was justified, Justice Hickinbottom held that, in the absence of any alternative submissions, the article 14 claim (the discrimination argument) must also fail. The interference was not material Justice Hickinbottom accepted that JK's rights under article 8 had been interfered with by the requirement that she be listed as "father" on AK's and PK's birth certificates. However, his Honour considered that this was not a material interference, as it is only in rare situations that JK and her children would be required to produce a detailed birth certificate that recorded that sensitive information. Furthermore, in those circumstances, the information is likely to be received by people who are prohibited from disclosing the information. There was also evidence that JK had publicly advertised her status as transgender through her twitter and facebook account, which undermined her position regarding her desire for privacy. The interference was justified

• Italy: Paradiso & Campanelli v Italy [2017]

12 Italian couple unable to conceive their own child together, put themselves forward for adoption, but no luck... • 2010, couple resorted to using surrogate in Russia through a clinic in Moscow... • Husband's sperm and donor eggs used, successful IVF and 2 embryos placed in surrogate... One embryo successfully implanted and baby boy born Feb 2011.... • Mother travelled to Moscow to collect baby, surrogate gave written consent to child being registered as the Italian couple's son.... • Mother stayed in Moscow with baby, skype/facetime Dad back in Italy. March 2011, couple registered as baby's parents... • Mother obtained travel authorization from Italian Consulate in Moscow to bring baby home to Italy. Once back in Italy, couple tried to register birth certificate and the authorities opened criminal proceedings against them - use of false documents, should have used adoption procedures... • Attempt to use adoption process, DNA testing carried out and no genetic link between baby and father found... • Italian authorities refused to allow adoption and parents accused of acting unlawfully, passing child off as their own... Parents appealed.... • Baby in care whilst legal proceedings rumbled on... • If the parents were convicted, that would preclude them from becoming the adoptive parents of the child... • After 15 months in a local authority home, child placed with foster parents and subsequently adopted... • Meanwhile criminal investigation continued... • Parents claimed that their Article 8 rights had been violated by the removal and placing into social care of their child... • Held - no violation by the State, child a foreign minor, surrogacy illegal in Italy, couple had passed child off as their own, whilst the measures taken by the State had pertained to the applicants private life, the aims of the law were proportionate to the legitimate aims of preventing disorder and protection of children...

2. a) What are the conditions that must be satisfied in order to obtain a Parental Order under s54 Human Fertilisation & Embryology Act 2008? Why is a Parental Order needed?

A parental order secures the legal status of intended parents under UK law, and is needed even if the parents are already named on their child's foreign birth certificate. Without a parental order, one or both of the intended parents will not be a legal parent in the UK which means: • The parents not having legal authority to make basic decisions about their child's medical care and education • Problems with inheritance and pension rights • Legal complications if the parents separate or divorce or one wishes to move abroad • Difficulty obtaining or renewing a British passport • Social services involvement (and in some cases a criminal offence for parents who fail to notify social services about their situation) • Needing to find and involve the surrogate in future key decisions and any legal proceedings relating to the child In 2013, Mrs Justice Theis (one of the High Court's specialist surrogacy judges) said: "The legal relationship between children born as a result of surrogacy arrangements and their intended parents is not on a secure legal footing without [a UK parental order] being made. That can have long term legal consequences for the children... The message needs to go out loud and clear to encourage parental order applications to be made in respect of children born as a result of international surrogacy agreements, and for them to be made promptly."

Problem area:'Living with' applicants? • Re X (A Child) [2018 ] EWFC 15

Applicant parents married and in a 'deep and long-standing relationship'. One of the couple openly gay, hence the marriage and relationship was platonic. They also lived in separate homes. The platonic aspect not the issue, however, the fact the couple lived apart was - as per s54(4)(a) HFEA 2008, but the court established that the child was always with one or other of the parents and moved between the 2 homes, the child was not living with anyone else, and the couple were committed to the child. Sir Munby found that 'I have no doubt I should make the Parental Order which is so manifestly in the best interests of the child' [para 3 ]....

**Re X and Y [2011] EWHC 3147 - £ and commercial arrangement

Application for parental orders in respect of children born to two women in India under surrogacy agreements. The President held that whilst payments under the agreements did not comply with the HFEA 2008 section 54, they were not disproportionate and granted the orders sought. After a number of years of failed IVF treatment, Mr and Mrs A made surrogacy agreements with two women in India, who had been contacted via a company at a fertility clinic there. In the agreements, both women renounced any legal or parental rights in respect of the children. Both women fell pregnant and following birth, X (a boy) and Y (a girl) were looked after by Mr and Mrs A. Mr A was the children's biological father, their biological mother an anonymous donor. After birth, both mothers also signed consent forms confirming the births, the receipt of payment, and consenting to their removal from India. Mr and Mrs A applied for parental orders in the UK. The President considered the applicable law under s.54 of the Human Fertilisation and Embryology Act 2008 and the 2010 Regulations, noting that the child's welfare throughout its life is the paramount consideration. The judge considered the critical issues to be whether the payments made by Mr and Mrs A fell foul of s.54(8) of the Act, whether retrospective authorisation of any payments was required, and whether the paramountcy of the children's welfare was engaged in decisions concerning the retrospective authorization of payments. The parents argued that although their payments had gone beyond reasonable expenses and therefore did not comply with s.54(8), they had acted in good faith with no attempt to defraud, and that the payments were not so disproportionate that the granting of parental orders would be an affront to public policy. They therefore sought the authorization of their payments. On behalf of the children, it was also argued that the payments should be retrospectively authorized, and that the children's welfare throughout their lives required the making of orders. The President accepted that Mr and Mrs A were genuine and the payments not disproportionate, and made parental orders in their favour. However, he took the opportunity to endorse the approach taken by Hedley J in Re X and Y, quoting the following passage from his judgment: "What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. Parliament is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration in its decisions. Yet it is also recognised 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 concerned) that rigour must be mitigated by an 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 circumstances 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."

**J v G [2013] EWHC 1432 (Fam) [there are many more examples]

Application for parental orders under s.54 of the Human Fertilisation and Embryology Act 2008 re. twins born following a Californian surrogacy arrangement The applicants, both British citizens domiciled and resident in the UK, were civil partners. Wishing to enter into a surrogacy arrangement, they initially engaged a clinic in California, but after nine failed IVF procedures contacted the British Surrogacy Centre of California ("BSC"). An agreement was signed with the BSC, and negotiations between the applicants and the first respondent surrogate mother were facilitated. In due course the applicants decided to cease using the BSC and instead instructed a Californian lawyer. They were awarded paternity orders by the Californian court in advance of the twins' birth, allowing them to be named together on the children's US birth certificates. Following the children's birth they were brought to the UK on US passports and given visitors' visas, following which the applicants applied for British citizenship and parental orders. In giving judgment, Theis J considered s.54 of the Human Fertilisation and Embryology Act 2008 ("HFEA 2008"), finding that the relevant requirements had been met. In particular, the provisions as to consent of the surrogate were clearly met, in circumstances where the surrogate was experienced, had co-operated with the Californian proceedings and signed a notarised statement indicating her consent more than six weeks after birth. In relation to the payments to the surrogate, totaling $56,750, her Ladyship considered the authorities (including Re X and Y [2008] EWHC 3030 (Fam), Re S [2009] EWHC 2977 (Fam), Re L (a minor) [2010] EWHC 3146 (Fam) and Re X (children) [2011] EWHC 3147 (Fam) but in particular the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (6 April 2010), as a result of which the court's paramount consideration was now the child's welfare throughout his or her lifetime. Applying the law to the facts, Theis J was satisfied that the payments were not sufficiently disproportionate to expenses reasonably incurred to be an affront to public policy, that the applicants had acted in good faith and that the making of parental orders would be entirely in accordance with the twins' lifelong welfare. Her Ladyship observed that applications for parental orders in respect of children born under international surrogacy agreements should be encouraged, and that such applications should be made promptly in order to accord with the non-extendable six-month time limit from the date of the child's birth. Her Ladyship also directed that a copy of the judgment should be served upon the Department of Health, the government department with regulatory responsibility in this area.

The law of England and Wales assumes a maximum of two parents at any one time

But, several people may have Parental Responsibility at the same time - see s.2(5) CA 1989....

*** Re H (A child) (Surrogacy Breakdown) [2017] EWHC Civ 1798 (Fam)

Court of Appeal dismisses an appeal from the decision of Theis J following the breakdown of an intended surrogacy arrangement. A and B were a male same-sex couple; C and D were a heterosexual married couple. The couples entered into a surrogacy agreement in respect of the child H. C had twice been a gestational surrogate before. A's sperm and a donor egg from a Spanish egg donor resulted in C's pregnancy with H. The parties' relationship deteriorated to the extent that there was then no communication between them. C later gave birth and her solicitor wrote to A and B to inform them that they were not prepared to follow their surrogacy agreement and so would not consent to a parental order. A and B were not told of H's birth until after C and D had already registered the birth with the name they had chosen. A and B then immediately issued legal proceedings. At paragraphs 9 to 12 of the Court of Appeal's judgment, the Court sets out the complex situation in which H found herself, including there eventually being four people with parental responsibility for her. The appeal At first instance, the fundamental question was where H should live. Once decided the remaining questions were "(a) how much contact there should be between H and the other couple, and (b) the extent to which that couple should be able to exercise parental responsibility." The Children's Guardian considered that the child should live with A and B as she considered that A and B were more likely to promote C and D's role in H's life positively than if the arrangements were the other way around. Having heard full evidence the Judge concluded that it would be best for H to live with A and B. That decision was not the subject of this appeal. The Judge also made a number of specific issue orders limiting C and D's use of parental responsibility and made provision for C and D's future contact with H (i.e. six times a year). C and D sought to appeal, and the core arguments of their appeal are set out at paragraph 22 of the Court of Appeal's judgment. The Court of Appeal specifically addressed each of those core arguments at paragraph 25 of their judgment, culminating in the dismissal of the appeal. Conclusions From the outset, the Court of appeal made clear three essential conclusions: (i) The Court reaffirmed the position as set out in Re N (a child) [2007] EWCA Civ 1053. There is no "special approach to decisions about surrogacy breakdown or other disputes within unconventional family structures" but the welfare principle applies with full force; (ii) This appeal was trailed as involving novel legal issues regarding the interface between the HFEA 2008 and the Children Act 1989, but on further examination these issues fell away; and (iii) The Judge was entitled to take the decisions she did on the evidence before her. The need for reform Interestingly, at the conclusion of its judgment, the Court of Appeal endorsed the words of Theis J at first instance where she commented "This case is another example of the consequences of not having a properly supported and regulated framework to underpin arrangements of this kind."

Becoming a father:

If a married woman gives birth- the law assumes that the husband is the father pater est quem nuptaie demonstrant • No displacement of this presumption even if conception took place before the wedding... • The historical policy behind the law is to avoid children being without a father... • Statisticians estimate that between 5-15% of all babies born into a marriage have been fathered by a man other than the Mother's husband.... If unmarried: law presumes the man on the birth register is the father. However, you do not have to name the father. Welfare reform act was supposed to correct this, but never brought into force. Only the mother, if unmarried, has to register the birth. Can be done by both parents, but no legal requirement.

Re P (Surrogacy: Residence) [2008] Fam Law 18....

In this case, the pregnancy came about as a result of the surrogate's eggs being fertilised with the commissioning father's sperm. The surrogate told the commissioning parents that she had miscarried and was no longer pregnant. The parents subsequently discovered that a child had been born to the surrogate so they made a s8 Children Act 1989 application for a Residence Order. By the time the case got to court the child was 18 months old. Given that the child had a blood tie with both the surrogate, and the commissioning father, the court's task was a difficult one. Although the surrogate and her husband had provided a settled home for the baby, the fact that she had lied about the pregnancy and was generally deceitful, the court did not believe that she would enable contact to happen with the commissioning couple, so they were granted a Residence Order, with the Surrogate (as the legal mother) to have contact with the child.

• Common law presumption that the husband of the of the mother is the child's father...

Pater est' (pater est quem nuptiae demonstrant) i.e. 'the father is who the marriage shows' • BUT FLRA 1969, s.26 - this is rebuttable • Family Law Act 1986, s 55A declaration of parentage; s.56 declarations of parentage or legitimation; together with Family Law Reform Act 1969, s.20 - ordering tests to determine parentage • See, e.g., L v P [2011] EWHC 3399 (Fam) • As a general rule the man with a genetic link with the child is that child's father • BUT see HFEA 2008, s.41(1) Persons not to be treated as father re sperm donors • Nb. A man can also become a father by court order ('adoption order' Adoption and Children Act 2002; or re surrogacy s54 HFEA 2008 'parental order') 'On an application made by two people ('the applicants') the court may make an order....

Problem: There is only one applicant? S.54(2) HFEA 2008....

Prior to May 2016, the answer to this would depend on the circumstances of the case: - If one applicant dies AFTER application has been lodged, but before the order is made: A and another and P v others [2011] EWHC 1738 (Fam) • Order granted. Art 8 engaged ~ no other order would recognise child's status with H & W equally ~ not poss to justify interference • But, the case did NOT open the path to 'single' applicants....

***The Ampthill Peerage Case [1977] AC 547 - Lord Wilberforce at 568G-H.

The case arose because Norman Murray Pringle provided DNA samples for a Clan Pringle project, and these revealed that the 10th baronet was not genetically related to his cousins and to the wider Pringle family, and also that Murray himself is descended from a legitimate branch of the family. Certainly, looking at photographs of Simon and Murray Pringle there does not seem any resemblance between them at all. Ratio: There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial. Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: 'The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth . . and these are cases where the law insists on finality.' However: 'For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time, so the law still more exceptionally allows judgments to be attacked on the ground of fraud.' Having a particular status in law means 'the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities.' (Lord Simon of Glaisdale) Lord Wilberforce considered the status of legitimacy: 'There can hardly be anything of greater concern to a person than his status as the legitimate child of his parents: denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, his succession to a title. It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question.' Munby P considered seven cases (case G having been adjourned) in which the applicant couples had undergone successful fertility treatment, but where the consents to treatment, required by Part 2 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008), had either since gone missing or were not in accordance with the consent forms mandated for use by the Human Fertilisation and Embryology Authority (HFEA), namely Forms WP and PP. There fell to be considered three general issues of principle: i. Whether it is permissible to prove by parol evidence that the forms mandated by use by the HFEA namely, Form WP or Form PP (but which could not be found) had in fact been executed in a manner complying with Part 2 of HFEA 2008, and whether, if that is permissible, and the finding is made, the fact that the form cannot be found prevents it being a valid consent. ii. The extent to which errors in completed consent forms can be "corrected", ether as a matter of construction or by way of rectification. iii. Whether a consent form that is in a form other than Form WP or PP is capable as operating as consent for the purposes of sections 37 and 44 of the 2008 Act. In respect of the first issue, Munby P, agreeing with the reasoning set out by Theis J in X v Y (St Bartholomew's Hospital Centre for Reproductive Medicine Intervening ) [2015] EWFC 13, concluded that whether or not a consent form was signed prior to treatment (it being uncontroversial that a consent form signed after treatment had commenced would be invalid) is a matter of fact that may be established by parol evidence. If that fact is established, the fact that the form could not be found would not operate so as to invalidate that previously given consent [paragraphs 45, 63]. Munby P [at paragraph 42] cited paragraph 61 of X v Y: "(1) It is agreed that the notice required under s 37(1)(a) in PP form needs to be completed prior to treatment provided to Y. (2) It follows that if that requirement is complied with (along with other requirements such as completion WP form, counselling etc) then at the time of the birth of the child X is treated as the legal father of the child (by operation of s.36 HFEA 2008). (3) If that is the case it would be wholly inconsistent with that provision, and the underlying intention to provide certainty, if that status could then be removed from the father and the child in the event of the clinic mislaying the consent in PP form, possibly many years later." In respect of the second issue, Munby P found "no reason at all why a Form WP or Form PP should not be said to be, of its nature, a document which cannot be rectified", applying the equitable doctrine of rectification [paragraph 47]. Alternatively, "the court can, as a matter of construction, 'correct' a mistake if...the mistake is obvious on the face of the document and it is plain what was meant" [paragraph 48]. It was the third issue that required the greatest analysis. In several of the cases the couples had signed their clinic's own internal consent form (referred to in the judgment as Form IC), rather than forms WP or PP. Munby P reasoned that the first question to ask was "whether, as a matter of its content and construction, a Form IC is apt to operate (a) as a Form WP and/or (b) as a Form PP" [paragraph 50]. Munby P then carried out a comparative exercise, considering on the one hand the words contained in the two Form ICs in question, and the requirements of the statute. He concluded that, having regard to the particular words used, that "both the Barts Form IC and the MFS Form IC - is, as a matter of content and construction, apt to operate both as a Form PP and a Form WP and complies with the requirements of" the relevant sections of the 2008 Act [paragraph 53]. However, the issue did not end there. Munby P then went on to consider a second question. Is a properly completed Form IC, which as a matter of content and construction complies with the requirements of the 2008 Act, precluded from operating as a valid consent because of the requirements in HFEA's directions that consent "must" be recorded in their specified form? Does non-compliance with that direction effectively meant that the clinic was not operating "under a licence" and therefore outside the scope of Part 2 altogether? Munby P concluded that failure to comply with HFEA's direction would not invalidate a consent that would otherwise be valid for the purposes of sections 37 or 44 [paragraph 57]. Taking a different view from Cobb J in AB v CD and the Z Fertility Clinic [2013] EWHC 1418 (Fam), Munby P reasoned that failing to comply with a HFEA direction did not meant that a clinic was not operating "under a licence" - that licence remaining in force and not having been revoked by HFEA. He reasoned that consent would only be invalid if outside the scope of any licence, and not for any breach of compliance with that licence [paragraph 58]. In light of these decisions of principle, Munby P considered the facts of each case and accordingly made declarations of parentage in all seven cases. However, in doing so he robustly criticised the "widespread incompetence across the [fertility] sector on a scale which must raise questions as to the adequacy if not of the HFEA's regulation then of the extent of its regulatory powers" [paragraph 8]. He also made it clear that nothing he had said in his judgment "should be treated as any encouragement to anyone not to use Form WP and Form PP" [paragraph 63].

Application for parental orders pursuant to the HFEA 2008 in the event that the surrogate could not be found to consent to the parental orders, as required. Orders granted. Retrospective permission granted to pay surrogate beyond reasonable expenses. and L (Surrogacy) [2012] EWHC 2631 (Fam)

This application for parental orders was made by a male couple who were to be recognised and treated in this jurisdiction as being civil partners. They had opted to become parents through surrogacy using the services of a clinic in India. The policy of the clinic was that the applicants would not be permitted to meet the surrogate mother. The applicants selected an anonymous egg donor and agreed that the first applicant would be the genetic father of the children. The applicants entered into a "formal court surrogacy agreement" with the director of the clinic and a woman selected to be the surrogate, agreeing, inter alia, to pay a total of $22,000 with an additional $5,000 in the eventuality that the surrogate gave birth to twins. Approaching the birth, the applicants were informed that the surrogate was expecting twins. The applicants wanted to ensure that all legal requirements to register them as the parents of the twins in the UK would be fulfilled and took legal advice. They planned to have their solicitors draw up a document which the surrogate would sign six weeks after the birth, as required by statute in the UK, consenting to the parental orders being made. As the applicants were unable to meet the surrogate they requested the assistance of the clinic. The clinic stated that they would be "happy to help". The twins were born and the applicants took custody of them two days after their birth. They were also given a document which was purportedly signed by the surrogate stating that she had received 350,000Rs towards "surrogate mother compensation, food, travel, living expenses for the term October 2010 - June 2011 and the caretaker/arranger's service charges from the clinic director". The applicants were able to apply for passports for the twins and flew to the UK, still awaiting the document with the surrogate's formal consent required six weeks after the birth of the twins. Almost three months after the birth of the twins the applicants were still waiting for the signed consent of the surrogate, as promised by the clinic. They received a single sheet of paper, purportedly from the clinic's director, with an obscene gesture. This suggested that the clinic would not be supporting the applicants in obtaining the surrogate's consent. The applicants, after a preliminary hearing before HHJ Black, enlisted an enquiry agent to track down the surrogate. Unfortunately, the enquiry agent was unable to find the surrogate. Baker J found that the following requirements under s54 had been met: (i) "the gametes of at least one of the applicants were used to bring about the creation of the embryo; (ii) the applicants were civil partners; (iii) this application was made within six months after the birth of the children; (iv) the children's home was with the applicants, in the UK and; (v) both applicants were over the age of 18. The requirements which required adjudication upon by Baker J were, firstly, dispensing with the consent of the surrogate mother required at least six weeks after the birth of the children and, secondly, whether he would grant retrospective permission for the payment of "surrogate mother compensation" as prohibited by s54(8) of the 2008 Act. Baker J dispensed with the need to obtain the surrogate mother's consent, on the basis of the children's welfare being the paramount consideration of the court and therefore requiring the making of a parental order; and stating "[i]t is only when all reasonable steps have been taken to locate her [the surrogate mother] without success that a court is likely to dispense with the need for valid consent." The judge also stated: "[A]lthough a consent given before the expiry of six weeks after birth is not valid for the purposes of s54, the court is entitled to take into account evidence that the woman did give consent at earlier times to giving up the baby. The weight attached to such earlier consent is, however, likely to be limited. The courts must be careful not to use such evidence to undermine the legal requirement that a consent is only valid if given after six weeks." With regard to the payment made to the surrogate mother, which was accepted as being beyond the "reasonable expenses" permitted by s54, the court was under a duty to place the welfare of the children first. Baker J, therefore, retrospectively authorised the payments made by the applicants in this case.

**Re Z (No 2) (A Child) [2016] EWHC 1191, applied in M v F &SM (HFEA 20008) [2017] EWHC 2176 Application to extend the wardship of a child borne via a surrogacy arrangement.

This case concerned A, a child, who was born via a surrogacy arrangement in the UK. M and F were the biological parents of A, and SM (the surrogate mother) and F were the legal parents of A. Whilst SM was pregnant with A, the relationship between M and F ended, and F decided that he did not want to have any involvement with A, notwithstanding that he was the only legal and biological parent of A. When A was born, SM surrendered A's sole care to M and was in favour of M becoming A's legal parent. As s.54(1) and (2) of the Human Fertilisation and Embryology Act 2008 does not permit single persons to apply for a parental order for children borne via surrogacy, M could not apply for a parental order in respect of A. Therefore, the surrogate mother and F remained the legal parents of A. Keehan J referred to the recent decision of the President in Re Z (A Child) (No.2) [2016] EWHC 1191 (Fam), in which he made a declaration of incompatibility in respect of s.54(1) and (2). His Lordship noted that the Government was actively considering the terms of a remedial order to address that incompatibility. However, in the interim, the court could not make a parental order in favour of M; the application that she planned to make would have to be stayed until such time as the law changed. Instead, the court held that it was in A's best interests for wardship to continue and for the court to grant care and control in respect of him to M.

What the court assesses

To obtain a parental order, the intended parents must satisfy the family court that the order is in their child's best interests (welfare being the court's paramount consideration) and that they meet all the criteria, which are: • The conception must have taken place by embryo transfer or artificial insemination, and the child must have been carried by a surrogate • One or both of the intended parents must be the child's biological parent • The intended parents must be married, civil partners or living together as partners in an enduring family relationship (although the government has told Parliament that it will be changing the law during 2017 to enable single parents to apply too) • The intended parents must submit the application to the court within the six months after their child is born (although in exceptional cases the court can extend this) • At the date they apply and the date the order is made the child must have his or her home with the intended parents • At the date they apply and the date of the order, one or both of the intended parents must be domiciled in a part of the United Kingdom, Channel Islands or Isle of Man • The intended parents must both be over 18 when the order is made • The surrogate and her spouse must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate cannot validly consent until the child is six weeks old • No more than reasonable expenses must have been paid, or the court must agree to 'authorise' the payments retrospectively.

Deciding domicile = Question of fact.

i) Actual residence ii) Intention of remain permanently & indefinitely

The woman who gives birth to the child will be 'the mother'

this presumption is not displaced by assisted reproduction/surrogacy, even if woman who gives birth has no genetic link to the child)- Statutory authority: s33(1) Human Fertilisation and Embryology Act 2008 'the woman who is carrying or has carried the child as a result of placing in her of an embryo or of sperm

Problems: RS v T (Surrogacy: Service, Consent and Payments) [2015] EWFC 22 (Fam)....

• 'All inclusive'surrogacy package with clinic in Ukraine,'older' applicants (in their early 60s), £31,000. • Twins born, surrogate signed declaration confirming that commissioning parents had parental rights over the babies, and that they could come to the UK. Written consent to the making of POs provided by the surrogate mother more than 6 weeks after the birth of the children, however insufficient detail to evidence her 'full understanding of what was involved' condition. Also, some concerns over amount paid, so request was made to clinic, numerous attempts to do so, and directly to surrogate but no response... • Theis J determined that she could dispense with service of the application. • Theis J was unwilling to draw the inference that the consent provisions per s.54(6) had been met; • and instead considered whether the applicants had taken all reasonable steps to find the surrogate, per s.54(7) re situations where they cannot be found... • in her view the applicants had met this test [31, also 32].

Parental responsibilities - mothers

• All (birth/gestational) mothers have PR of their children -Children Act 1989, s.2(1) and 2(2)(a) • Mothers lose PR if/when: - child reaches 18 - child is adopted - child dies - court makes parental order after surrogacy(s.54 HFEA 2008)...

C (2) D v (1) E (2) F (3&4) A&B (By their Guardian) [2016] EWHC 2643...

• Applicants C and D, unable to have children themselves, biological parents of twins A and B who were born to a surrogate E, in 2015. E is married to F. E had acted as a surrogate before... • The surrogacy arrangement was a 'consensual, altruistic arrangement' through a non-profit organisation and embryos created from the gametes of both C and D were transferred to E who carried A and B through pregnancy to birth. • At around 12 weeks into the pregnancy, the relationship between C, D and E broke down. At the 12 week scan the Dr expressed concerns about the health of E (aged 51) if the pregnancy continued, further medical advice was taken and E carried on, but felt that C and D had not shown sufficient concern for her well-being.... • Up to the early birth of the children there was limited contact between the parties, although E did provide occasional updates on the progress of the pregnancy... • When E went into early labour, C and D had difficulties gaining access to the babies who were in neonatal intensive care. The babies were eventually able to go home with C & D. • Limited communication but C & D sent E photographs of the twins until early in 2016 when she told them she did not want to receive anything further... • C & D made applications for Parental Orders, but did not have E's consent and were unable to resolve the issues through mediation... • All elements of the PO application were met, apart from consent as per s54(6)HFEA 2008... • Clear from mediation sessions that E and F were resolute in their refusal to consent to the POs, but wished to have no active involvement in A & B's lives.... • C and D acknowledged an alterative legal route to them becoming parents in the eyes of the law could be via an adoption order, but such an order does not recognise the biological link between C, D, A and B (paras 29 and 30)...and would mean that C and would be adopting their own children... • E and F would not 'object' to an adoption order... • Mrs Justice Theis unable to make the POs, children to remain with C and D with a Child Arrangements Order in place. C, D, A & B in 'legal limbo'...

• Problem area: Domicile - s54(4)....

• At the time of the application and the making of the order - • (a) the child's home must be with applicants and • (b) either both the applicants must be domiciled in the UK or in the CI or the Isle of Man.... • No need to be present in the UK when the treatment /pregnancy occurs, merely that at least one of the commissioning parents is domiciled in this jurisdiction... • Two aspects of domicile: • 'Tourists' coming into the UK ~ Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam) • Turkish nationals, used services of a British surrogacy agency which introduced them to a potential surrogate... • Father's sperm used to fertilise surrogate's eggs, and successful process, baby girl born... • Despite surrogate consenting to the application for the PO, court unable to make the order because the commissioning parents did not satisfy the domicile requirements and were planning to take baby home to Turkey... • Court unable to use s8 Order route, as child to leave jurisdiction... • Alternative order made to free child, via adoption route - s84 Adoption and Children Act 2002...

Problem area: s54(4)(a)Child's home...

• At the time of the application and the making of the order - • (a) the child's home must be with applicants... • This provision requires that the child's home is with the applicants at the point the application is submitted and the making of the order... • Doesn't stipulate that home should be in the UK.... • Also, worth noting that unlike with adoption, no requirement that child observed in the home... • Out of kilter with the welfare consideration (defect in the law, lack of safeguarding of the child)....

• M v (1) F (2) SM (3) A (By his Guardian) [2017] EWHC 2176 - August 23 2017...

• Baby A born early 2017 via a surrogacy arrangement. Gametes provided by commissioning couple. Surrogate a 'family friend'. Everything set up properly via a clinic. Baby handed over to commissioning Mother after the birth. • During the pregnancy, commissioning couple split up, Husband no longer wanted to be involved in the child's life, but that gave rise to the issue that M as a single applicant unable to obtain a PO to become A's legal parent as well as biological parent... • A made ward of court, and care and control of child granted to M, also ordered that surrogate could not remove child from her care, Surrogate keen for order to be made... • M in process of making PO application under s54 HFEA 2008, application 'stayed' until the change in the law following Re Z (A Child).

.

• Becoming a father as a result of assisted reproduction - Human Fertilisation and Embryology Act 2008 - various sections depending on the type of assisted reproduction technique involved.... • S35 Woman married to a man at time of treatment... • S36 Treatment provided to woman where agreed fatherhood conditions apply.... • S37 Agreed fatherhood conditions... • S38 Where a person is to be treated as the father of the child by virtue of a35 or 36, no other person is to be treated as the father of the child... • S39 Use of sperm, or transfer of embryo after the death of man providing sperm...then man is to be treated as the father of the child.... • S40 Embryo transferred after death of the husband who did not provide sperm.... • S41 Persons NOT to be treated as father... • S45 Where a woman is treated by virtue of s42 -43 (Woman as other parent)....

• Re Q [2014] EWHC 1307 (Fam)

• British woman, French husband, living in France but she maintained connections with UK, surrogacy in US In both cases (and others) parents have then sought PO in England to regularise their legal position re the child. Question of domicile?

Ms M v Mr F and Mr H [2013] EWHC 1901

• Child aged 2, mum = Ms M, biological father = Mr F • Ms M and Mr F met through him advertising services as 'unpaid sperm donor' on-line... • Mr H = Ms M's husband at time of C's birth. • Mr F claimed child conceived by Donor Insemination, Ms M said via intercourse. Sperm donors - s41 HFEA 2008 Persons not to be treated as fathers.... • Parentage turned on how the child was conceived. Ms M sought declaration s.55A FLA 1986. • Judge found Mr F and Ms M both 'deceptive' & that child conceived by 'ordinary sexual intercourse', therefore Mr F = both biological & legal parent. • Legal parent - obligations - Mr F, therefore liable to pay child maintenance.....

Re Z (A Child) [2015] EWFC 73

• Child, Z, born in the US to unmarried surrogate mother - using applicant father's sperm and third party donor egg. • US provisions (in Minnesota) absolved mother of legal rights in relation to Z, and vested them solely in applicant father. Birth registered in father's name etc. • Father returned to UK with baby Z. • Problem: in the UK, the surrogate is still treated as mother, and the 'father' does not have Parental Responsibility, as a single applicant cannot meet criteria in s54(2).... • Temporary one: Z was made a ward of court, so day to day decisions can be taken about health, education etc... • Permanent solution: Parental Order or adoption order; former is preferable but F is a single applicant.... • Question for the court could s.54(1) be read in such a way to grant an order to one person? Can it be 'read down' in accordance with s.3(1) HRA 1998 so as to enable that to be done? Munby P: NO, not possible to do this. Conscious decision was made in the original legislation to exclude single people as an important point of principle, Re Z [2016] EWHC 1191.... • Father declared that he would seek a declaration of incompatibility... • Munby P was prepared to 'assume' Arts 8, 12 and 14 engaged re differential treatment for single applicants, compared with e.g., adoption provisions - s49 Adoption and Children Act 2002 which allows (a) a couple, or (b) one person to apply (see further s51 ACA 2002 for more detail).... • But, s.6(2) HRA 1998 is difficult, as provisions here lie in primary legislation (i.e. not open for authorities to act differently?). • Munby did not accept s.3 approach; possible for father to seek 'declaration of incompatibility, per s.4 HRA 1998.... • Claim that s54 HFEA 2008, requiring a PO to be made by two people is incompatible with the rights of both the father and Z, either under (a) article 8 ECHR; or under article 8 taken in conjunction with article 14.... The child's claim was by his Guardian and supported the father's case... • Secretary of State conceded that s54(1) and (2) HFEA 2008 are incompatible with Article 14 taken with Art 8 - 'discrimination'... • Not Art 8 breach - no ECHR convention right to surrogacy... No Art 8 entitlement to Parental Order - alternative route to legal parent status available via adoption • Held: Father successful s54 HFEA 2008 is a discriminatory interference with single person's rights under Article 8. Court was satisfied it could make the declaration requested... • But declined to recommend that Secretary of State use remedial powers under s10(2) HRA 1998 'If a Minister of the Crown considers that there are compelling reasons....he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility'... • Sir James Munby '...this is an area of social policy in relation to a matter - surrogacy - which is controversial....it is constitutionally a matter for the legislature to determine its response...' Issues around 'single parent families' [para 30]

ARB v IVF Hammersmith Ltd & R [2017] EWHC 2438 QB....

• Claimant (ARB) had been in relationship with R. Had IVF treatment in 2008, and their son was conceived and born... • ARB had consented in writing to the storage of unused embryos and sperm for a period of up to 10 years... • Also agreed in writing (as did R) that both parties would need to give their consent before any embryos could be thawed and replaced. Both agreed to update clinic if a change in personal circumstances... • Nov 2010 - embryo thawed and implanted in R, resulted in the birth of a daughter... • ARB claimed that he and R had split up in 2010 and she had forged his signature on forms submitted that led to E's conception and birth... • ARB claimed that IVF Hammersmith were in breach of contract and should be held financially liable for the cost of bringing up his daughter... • ARB argued that the child was unwanted, he would not have agreed to having another child with R after they had broken up... • IVF Hammersmith brought R in for an indemnity (to make her liable)... • ARB successful in showing that is signature on consent form forged, but failed due to tort policy considerations i.e. difficult/impossible to measure the 'loss' caused by the birth of an 'unwanted child' v the 'benefits' that flow from being a parent; also not fair, just or reasonable to allow this type of claim (see Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52 for a reminder of the policy issues)...

S54 HFEA 2008 - The criteria (1) -(11)...

• Conception must have been by embryo transfer or artificial insemination and the child must have been carried by a surrogate.... • One/both of intended parents must be a biological parent... • The intended parents must be married/CPs or living together as partners in an enduring family relationship (will also include single people soon).... • Application for the Parental Order must be within 6 months of birth, (but no earlier than 6 weeks after the birth)... • At the date of application and the making of the order the child's home must be with both parents.... • At the date of application and the making of the order one or both parents must be domiciled in UK... • Both parents must over 18.... • The surrogate (and her husband if she is married) must fully and freely consent to the making of the PO.... • No more than reasonable expenses must have been paid to the surrogate....

H v S (Surrogacy Arrangement) [2015] EWFC 36

• Dispute over the nature of the arrangement between the parties... • Child (girl), M, born to S, with H's sperm. • H & B (H's long-term male partner) say arrangement was surrogacy, and they were intended parents, but had agreed S could have some involvement in child's life. • S alleged H was sperm donor and S would be main carer, no role for B to play.... • No consent by mother, S, thus no possibility of PO under s.54. Solution? • Child Arrangements Order under s8 Children Act 1989 naming H and B as who Baby M should live with (among other aspects). • Nb. Reporting restriction ordered (temporary'gagging order' - due to surrogate's social media use)

In order to be an effective parent - it is necessary to have some sort of recognition (in law) of what that involves

• Duties.... • Responsibilities.... • Obligations.... • Legal recognition.... • S3 Children Act 1989 - Meaning of Parental Responsibility... - "In this Act 'parental responsibility' means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children Act 1989, s.3(1)

Second mother - pr

• Essentially, the new provisions mimic those of married and unmarried fathers - i.e. depends on whether women in Civil Partnership or not. • If in CP: - has PR (CA 1989, s. 2(1A)(a)); Nb. Only since 6 April 2009 • If no CP: must acquire PR (CA 1989, s.2(2A)(b)). Acquisition under CA 1989, s.4ZA: • registration (s.4ZA(1)(a)); • agreement (s.4ZA(1)(b)); • court order (s.4ZA(1)(c)).

• Evans v UK [2007] (Application no. 6339/05)

• HJ revoked consent to continued storage and use of embryos, as he was entitled to do within the consent provisions; I.e. 'effective consent' required for continued storage • NE sought opposite order (effectively) • CA: straightforward case, literal interpretation • Art 8? 'reasonable balance' struck by the HFEA 1990 • Appeals to ECtHR and Grand Chamber failed. - Clash of 'right to be a parent' vs ' right not to be a parent'. Ruled in dad's favour.

In the JP v LP case the surrogate who was a friend of the commissioning parents, became pregnant following insemination at home with F's sperm.

• Hospital in which child, C, was planned to be born required the parties to provide 'surrogacy arrangement' - so one was drawn up by solicitors. (Nb. Solicitors were committing an offence under s2 Surrogacy Arrangements Act 1985 which prohibits negotiation of such arrangements on a commercial basis.- s2 Surrogacy Arrangements Act 1985)... • Baby C born in March 2010, birth registered by 'Father', birth certificate him as 'father', 'Mother' the surrogate. • 3 months after C was born, the ' commissioning parents' split up and the 'Mother' left the matrimonial home with the baby, and she made an application for a S8 Children Act 1989 Residence Order (RO). RO made in favour of her, with Father allowed contact with C. • At the RO hearing an application for Parental Order was also made to sort out the parental status issue, however it took some time for the application to be properly filed and C was now 7 ½ months old so the application was out of time, although nobody realised this.... • During the period leading up to the filing of the PO application, the relationship between the commissioning parents broke down further, and further court action over residence and contact ensued. Commissioning parents undertook to reissue an application for a PO.... • Things continued to get worse between the parents and the case was transferred to the High Court with the surrogate (as C's legal mother) joined as parties... • As the court could not make a s54 PO due to the exceeding of the time-limit (C now 1 year old), the High Court had to consider how to regularise situation in respect of C (in light of disputes between mother and the father). A PO not allowed as out of time... • Due to the 'wholly exceptional circumstances' of the case King J made C a ward of the court; also made a shared residence order (now a CAO) was also made and Parental Responsibility was delegated to the mother and father. The surrogate was prohibited from exercising PR without the prior leave of the court.

Births, Deaths Registration Act 1953

• If unmarried, statutory duty is on the Mother, but parties can jointly register (But not unmarried father)... • Mother can refuse to name a father (s56 Welfare Reform Act 2009, Schedule 6 was designed to force the mother to name/register father, but was not brought into force)...

parental responsibilities - fathers

• Married fathers (always) remember pater est.... - Children Act 1989, s.2(1) (but can lose it...) • Unmarried fathers (sometimes - usually?) - Children Act 1989 s.4 as amended - S.4(1)(a) birth registration as parent • Nb only since 1 Dec 2003 - Or via a S.4(1)(b) parental responsibility agreement Or a S.4(1)(c) parental responsibility order

Leeds Teaching Hospital NHS Trust v A [2003] EWHC 259

• Mrs A's egg fertilised with sperm of Mr B (instead of Mr A's). Held: Mr A had not consented to treatment with THAT sperm, therefore could not be the legal father under the statute. - (then: s.28 HFEA 1990 - see now s.35 HFEA 2008) • Mr B's sperm used without his consent. Who is the legal father? Ans: Mr B. • This turned on the consent provisions ~ then contained in s.28(6) 1990 Act, now see s.41(1) HFEA 2008, in conjunction with Sch 3 of the HFEA 1990...

Following the High Court's ruling in May 2016 that the s54(2) HFEA 2008 two applicants rule for Parental Orders was incompatible with European Convention Human Rights, in December 2016, the Government confirmed that it would lay a remedial order before Parliament to allow single people to apply for a Parental Order in order to make the law compliant with the ECHR...

• November 2017 - draft remedial order laid before Parliament, to insert s54A enabling single applicants - 'equal approach for a single person and couples in obtaining legal parenthood after surrogacy'. If/when in force, would also allow a 6 month 'window' for existing single parents through surrogacy to obtain a retrospective parental order.... • March 2018 - Joint Committee on Human Rights reported - concerns about poor drafting, and, issues about single applicants in relationships, and the delay in bringing the order into law, expectation that this would happen by end of summer 2018.... To date, no movement....

Problems with the law: Cases - s54(8) HFEA 2008, 'money paid beyond 'reasonable expenses'....

• Re Q [1996] 1 FLR 369 ~ £8,280 • Re X [2002] EWHC 157 ~ £12,000 • Re X & Y [2011] EWHC 3147 ~ £27,405 - Of which 'only' £3k to each surrogate (x2) • Re C [2013] EWHC 2408 ~ £31,500 plus $15,000 to the agency, and over £17,000 for medical treatment • Re A, B and C [2016 ] EWFC 33. Two male commissioning parents, 3 children born to 3 different surrogates who were paid £13, 192.80, £12,477.61 and £15,000 respectively, included payments for holidays following the births. Accepted as 'reasonable'.....

What is surrogacy>

• S.1(2) "Surrogate mother" means a woman who carries a child in pursuance of an arrangement— • (a) made before she began to carry the child, and • (b) made with a view to any child carried in pursuance of it being handed over to, and [parental responsibility being met] (so far as practicable) by, another person or other persons.

The law: Parental orders s.54 HFEA 2008 (becoming the legal parent, acquiring a child through surrogacy....) Requires:

• S54 (1)(b) Gametes or embryo from commissioning husband or wife or both - i.e., one or both parties must be genetically related to the child - (c) conditions (2) - (8) must be met • (2) (a) married couple - extended to same-sex marriage from 13 March 2014 • (b) Civil Partners*.... • (c) Living as partner in enduring family relationship but not within prohibited degrees* • *(b) & (c) introduced by 2008 Act -previously restricted to married couples • 'Prohibited degrees' - see s.58(2) HFEA 2008 (& sem 2 lectures on nullity) Includes parents, grandparents, siblings, aunts and uncles [full and half blood] • (3) application for Parental Order within 6 months of birth • (4) at time of application/order made: • Child must reside with applicants - case law on this... • Either or both applicants domiciled in UK • (5) both applicants must be (min) age 18 • No known cases on this issue (yet!).... • (6) Court must be satisfied that • Woman who carried child & • Any person who is a parent (not applicants) including any man by virtue of s35-6 or woman by s.42-3 • Have freely and with full understanding of what is involved, agreed unconditionally to the making of the order • (7) ss (6) does not require agreement of person who cannot be found/ is incapable of giving agreement; W's consent = ineffective for 1st 6 weeks after birth • (8) Court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) had been given or received by either apps for or in consideration (see subsections) • Lots of decisions in High Court on this.... • Problematic because (as shown in the case-law), what may be 'reasonable expenses' in somewhere like the USA, will seem excessively generous in Thailand, or in parts of Europe such as the Ukraine.... Remember the current law prohibits commercial surrogacy.... • Appears to becoming more commonplace/acceptable - reliable data not available, many arrangements taking place abroad (e.g. Ukraine and India).... • However, applications for Parental Orders quadrupled in the period 1993 - 2013... • 2011 - 114 POs made; 2016 - 400; 2017 - 332 (statistics refer to final orders, not ongoing applications)... • The statistics indicate that surrogacy is increasing, but we do not know precisely how many children are being born through such arrangements, because there is evidence that indicates that some commissioning parents are not aware of the requirement to obtain a Parental Order in order to formalise their legal status as parents.... • If commissioning parents do not apply for a s54 HFEA 2008, Parental Order, they do not acquire legal status that they are the parents of the child born from the surrogacy arrangement... • resulting in no legal status to make decisions about: - medical care - education - obtaining/renewing the child's passport - difficulties if the commissioning couple separate and involve the courts in disputes over residence and contact - There is no absolute requirement within the surrogacy regulatory framework to apply for a Parental Order under s54 HFEA 2008.... - If commissioning parents do apply, there are criteria that have to be satisfied, so not everybody who applies for an order will be successful... - There may be commissioning parents who think that they cannot meet the criteria so don't bother applying for fear of 'losing' their child... - If things go wrong, without the Parental Order, the child's legal mother will be the surrogate as per s33 Human Fertilisation & Embryology Act 2008, and she may be hundreds of miles away; - f surrogate is married her husband will be the legal father as per pater est and s35 HFEA 2008, the commissioning parents have no legal status... - ....parents 'may be inadvertently sleepwalking into an uncertain legal future for their much wanted child....' Theis J, at para 13 Re C and D (Children) (Parental Order) [2015] EWHC 2080 (Fam)....

Problem area: Surrogate's consent

• S54(6) HFEA 2008 'The court must be satisfied that both- • (a) the woman who carried the child, and • (b) any other person who is the parent of the child but is not one of the applicants...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 ...if given by her less than six weeks after the child's birth...' • Policy reasons - (6) to try to avoid 'forced surrogacy' and 'baby trafficking'.... • (7) to allow the surrogate time to recover from the birth and make an informed and measured decision....

• Re G & M [2014] EWHC 1561 (Fam)

• Same-sex male couple, domicile of origin was France; • sold main house Dec 2012 but had two more properties in France; • moved to UK in Jan 2013, babies born via surrogacy (in US) in March 2013 Here: G & M found to be domiciled in UK (employment, taxes, social reasons for move etc deemed significant); as was wife in Q, who did not have the intention to reside permanently and indefinitely in France. i.e. G & M 'gained' a domicile of choice in UK; and, wife in Q 'retained' her domicile of origin in UK

Surrogacy: international perspective...

• Surrogacy - illegal in some jurisdictions - e.g India, Italy... • Other jurisdictions - well organised, e.g USA (nb. State regulations and federal regulations involved). Ukraine seems to be the current choice for many couples...

But, in the 21st century, not always necessary to have a 'father' in law, possible/permissible in law to have

• two female parents.... • or, two male parents... • S41 HFEA 2008 Persons NOT to be treated as father... • S45 HFEA 2008 Where a woman is treated by virtue of s42 -43 (Woman as other parent) no man is to be treated as the father of the child... • However - remember in Anglo-Welsh law - ONLY TWO Parents at a time