S, Re [2009] EWHC 2977 (Fam)

[2009] EWHC 2977 (Fam)

Case No KH08P05786

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Monday, 9 th November 2009

Before

MR. JUSTICE HEDLEY

(In Private)

Between

RE SApplicant

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RE S Applicants

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JUDGMENT(As approved by the Judge)

[1]This is an application by a married couple, Mr. and Mrs. A., for a parental order under s.30 of the Human Fertilisation and Embryology Act 1990 in respect of twins known as B and C who are now aged 18 months. The hearing has taken place in private, but judgment has been adjourned into open court. The judgment is accordingly anonymised and of course nothing may be said or reported which might identify the children or their family.

[2]The children were born in the state of California in the United States of America. On 19th December 2006 Mr. and Mrs. A. entered into what was known as a Gestational Surrogacy Agreement, which is a lawful and binding agreement under Californian law. Subsequent to that the surrogate carrier became pregnant carrying, as she was, an anonymously donated egg fertilised by the sperm of Mr. A.

[3]On 8th April 2008 the court of competent jurisdiction in California made an order prior to the birth of the children declaring that, on birth, Mr. and Mrs. A would be the lawful parents of the children and the surrogate mother would have no standing in respect of them. The children were brought back to this country on British passports within three weeks or so of the birth, they having been handed to Mr. and Mrs. A, effectively, at birth.

[4]This application is brought under the old Act of 1990, but it is worthy of note that the Act which has replaced that has in fact made no relevant alterations to the law of surrogacy other than to extend the classes of person who may apply for an order under s.30. Mr. and Mrs. A. qualify, as it were, biologically under s.30(l). The court is therefore empowered to make an order if the requirements of subsections (2)-(7) of s.30 are satisfied. If they are so satisfied, then the court has to apply a welfare test in deciding whether or not to exercise its discretion, which then arises, to make an order. I am satisfied that the material provisions of subsections (2)-(6) are satisfied. I make only this observation: that the consent of the mother, which is lawfully required, has in this case been given orally to the CAFCASS reporting officer. I am nevertheless satisfied that it is a consent which satisfies the requirements of subsections (5) and (6) of s.30, not least because it accords fully with the consent arrangements made in California.

[5]The difficulty in the case has arisen in relation to the construction of s.30(7) which provides:

“The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or the wife for or in consideration of – (a) The making of the order, (b) Any agreement required by subsection (5) above, (c) The handing over of the child to the husband and the wife, or (d) The making of any arrangements with a view to the making of the order, unless authorised by the court.”

It is important to indicate that some of the terms of the Gestational Surrogacy Agreement addressed part of those matters. It is undoubtedly the fact that significant sums were spent in expenses in terms of medical and legal expenses. At the end of the day, the sum outstanding for consideration relates to $23,000 that was paid to the surrogate mother. It is clear, and is accepted by counsel, that the burden is on the applicants to establish that that money does not offend s.30(7). (a) The making of the order, (b) Any agreement required by subsection (5) above, (c) The handing over of the child to the husband and the wife, or (d) The making of any arrangements with a view to the making of the order, unless authorised by the court.”

[6]The difficulty the applicants have, bearing in mind that they would not have been aware of these provisions at the time they entered into the Gestational Surrogacy Agreement, is that they can in fact give no account for how those sums were used. It is argued, reasonably in my view, that part of that would have been attributable to the expenses of the surrogate mother incurred by reason of the pregnancy. The difficulty is that many expenses, in terms of rent and the like, were inevitably incurred by her because she was a single mother of a young child at the material time. The only sums that can reasonably be expenses within subsection (7) are those additional to the ordinary expenses of life incurred by reason of the surrogacy itself. In my judgment, the applicants are wholly unable to persuade the court that no sum has been paid which offends the provisions of s.30(7). The court is of the view that a significant element, although it is difficult to specify exactly what of the $23,000 represents a payment which is contrary to the provisions of s.30(7).

[7]Where then does that leave the court? My attention has been invited to a first instance decision, Re X and Y (Foreign Surrogacy)

[2009] 1 FLR 733

(a decision in fact of mine) where the matter of the approach to the authorisation of figures is considered. In particular, my attention has been drawn to para. 19 of that judgment. I adhere to the views there expressed by me following, as I was, the views of Mr. Justice Wall (as he then was) in the earlier cited case. It is perhaps worth an observation as to the difficulties in which everybody finds themselves in cases like this. There is no doubt, in my judgment, that Mr. and Mrs. A entered into this agreement in good faith and without any understanding on their part that the agreement that they had entered into was not one that would be recognised under English law. Secondly, there is a problem for the courts of this country in that it raises the question of what the proper approach is where those who cannot do something lawfully in this country that they wish to do, go overseas do it perfectly lawfully according to the country in which the surrogacy is carried into effect and then seek the retrospective approval of this country for something which, as I say, could not have been done here. This clearly raises matters of public policy and those matters really relate to, as it seems to me, three things:(1) To ensuring that commercial surrogacy agreements are not used to circumvent childcare laws in this country, so as to result in the approval of arrangements in favour of people who would not have been approved as parents under any set of existing arrangements in this country.

(2) The court should be astute not to be involved in anything that looks like the simple payment for effectively buying children overseas. That has been ruled out in this country and the court should not be party to any arrangements which effectively allow that.

(3) The court should be astute to ensure that sums of money which might look modest in themselves are not in fact of such a substance that they overbear the will of a surrogate. The last consideration, of course, is not one which is applicable to a case involving the United Kingdom and the State of California. It may, and does, arise in other contexts. The first two considerations, however, do.

[8]I have considered with care the history of this case. I am satisfied that there is nothing in the history of this case which would, other than biological deficiencies, have prevented Mr. and Mrs. A from parenting any children conceived by them. That leaves only the question as to the actual payments themselves. I am satisfied that these payments do not offend any broad issue of principle in relation to the buying of children and are not greatly disproportionate to expenses reasonably incurred; nor are they tainted by any issues of bad faith so as to be such that the court should not approve them, bearing in mind that all the evidence is that Mr. and Mrs. A provide an admirable home for these children. So for those reasons, which broadly accord with the approach of the court taken in X and Y, I am prepared to approve these payments. I am satisfied on the evidence of the CAFCASS officer (and on other evidence available to me) that the welfare of these children viewed in a lifelong perspective is such that it is in their interests that a parental order under s.30 should be made, and I am accordingly prepared to make it.

[9]However, there are two other observations that perhaps ought to be made. The first is that it is apparent from what I have been told that Mr. and Mrs. A knew of others, or had been told of others, who had been to California and had children by the same arrangements without any difficulty. What I think was meant by that is that they have chosen not to seek the approval of the English courts for the purposes of regularising that arrangement. That may have very serious long-term implications because, of course, without a parenting order the surrogate remains the lawful parent. If the surrogate were married then of course the lawful father would be the surrogate’s husband and serious problems may arise in due course if no steps are taken to put these matters right, and such steps cannot be delayed because of the time limit that is to be found in s.30 which appears to be incapable of enlargement. The second observation is this: whenever the issue of s.30(7) arises for serious consideration it seems to me that, as a matter of practice, the children should ordinarily be separated represented by a Guardian. It has not been undertaken in this case, but, because I am (as it were) comfortably satisfied that these payments ought to be approved, I will not let that stand in the way of the making of an order. Had I entertained any serious doubts, it is beyond doubt that I would have stood this matter over and asked for an appointment of a Guardian and separate representation. It is something that perhaps ought to be borne in mind in future cases where approval is going to be sought under s.30(7).

[10]Those observations aside, I am satisfied that it is proper to make the order sought in this case and I propose to do so. ________________________

Cited in 14 later judgments

and 5 more of the most senior