10 January 2011
Alison Millar was instructed by a same sex couple in an application for a parental order in respect of their twin sons, who were born in Texas, USA last year as a result of a gestational surrogacy arrangement facilitated by a commercial surrogacy agency. Such arrangements have been in the news recently following the birth to Sir Elton John and his partner, David Furnish, of a surrogate son.
It has been possible for a same sex couple, who are civil partners, to apply for a parental order conferring parental rights and responsibilities in respect of a child born to them following a surrogacy agreement since the Human Fertilisation and Embryology Act 2008 extended the relevant legal provisions on 6 April 2010.
Our clients’ application was heard at the Royal Courts of Justice on 20 December 2010. The Judge considered the relevant conditions for a parental order before making an order in favour of our clients.
Following this case, it may be helpful to discuss some of the factors which will be considered in an application for a parental order following an international surrogacy agreement:
Under the terms of the Human Fertilisation and Embryology Act 2008, one of the conditions of making a parental order is that one or both of the applicants must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.
The concept of domicile is quite a complex one but it connotes a long term attachment to a country rather than short term residence. The court therefore will take a long term view of “domicile” rather than considering applicants’ immediate circumstances.
So it is possible for a couple who are not presently living in the UK still to apply for a parental order provided that they have not given up the UK as their home. Equally, a couple who have taken up temporary residence in the UK, for example, hoping to benefit from the extension of the surrogacy provisions to same sex couples may well find that neither of them meet the basic requirement of a UK domicile.
Child’s home with applicants
The child’s home must be with the applicants both at the date of the hearing when the parental order is made and at the time the application for the parental order is issued.
This is something that couples will need to be aware of, when considering the timing of applying for a parental order (which must be done within 6 months of the day the child or children are born), and emphasises the need for couples to have become fully familiar with the legal scheme or taken expert advice before making their application with the Court.
One applicant biological parent / age of applicants
At least one of the applicants must be the biological parent of the child and the conception must have taken place artificially.
At the time of the making of the order both the applicants must have attained the age of 18 years old.
Consent of surrogate parent
Both the woman who carried the child, and any other person who is a parent of the child but is not one of the applicants (including the husband of the surrogate if married), must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental order. The agreement of the woman who carried the child is ineffective if that agreement is given by her less than 6 weeks after the child’s birth.
The signed, written consents of the surrogate mother and, if married, her husband will therefore need to be obtained and filed with the Court. The surrogate mother and, if married, her husband must further be sent a copy of the application for the parental order and have the opportunity to respond to it, saying whether or not they agree to the parental order being made.
Payment to surrogate parent
Commercial surrogacy agreements continue to be considered unlawful in the United Kingdom for reasons of public policy. Under the terms of the Human Fertilisation and Embryology Act 2008, the court must be satisfied that no money or benefit, other than “expenses reasonably incurred” have been paid to a surrogate parent by the applicants.
If payments exceed “expenses reasonably incurred”, a parental order can only be granted if the court is prepared to authorise such payments. Payments expressed to be “compensation” for the fact of pregnancy itself or twin pregnancy, in particular, are likely to be regarded as going beyond the reimbursement of expenses. The court will need to be satisfied that payments are made in good faith and the free will of a surrogate mother to consent (or not) to the arrangement has not been compromised.
Payments will be considered in the factual context of each individual case and the court will take in to account the financial circumstances of the surrogate parent. So payments considered acceptable in the context of a US surrogacy arranged by a reputable agency could cause the Court grave concern if made to a surrogate mother in a country where surrogacy is less well established and they would represent a small fortune.
Welfare of the child
The first and overarching responsibility of the court is to consider the welfare of child who is to be subject to a parental order. This principle was confirmed in the recent case of Re L . Although the court cannot overrule all questions of public policy, the children’s welfare will be the primary consideration of the court. Whilst the court will primarily consider the positive implications of making an order, it will also have regard to the negative effects of not making an order; such as if the child in question would become a legal orphan.
For further information about the issues raised in this article, please contact Alison Millar on 0207 650 1241. This website story does not constitute legal advice as each case depends on own facts.
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