Surrogacy: Problems with the current law

s.54(1)-(8) HFEA 2008

Lets breifly recap- these are the conditions to the courts granting a Parental Order:

• s.54(1) covers how the child is conceived, it must have been carried by someone who is not one of the applicants, through artificial insemination and it must be genetically related to at least one of the applicants
• s.54(2) covers the applicants relation, they must be husband and wife, in a civil partnership or two people who are living together in an enduring relationship and who are not in a prohibited degree of relationship
• s.54(3) covers the time limit in which the applicants can apply, this must be within 6 months of birth
• s.54(4) covers where the child must be living, this must be with the applicants and in the UK, channel islands or on the isle of man
• s.54(5) covers the age limit of the applicants which must be 18 or over
• s.54(6)-(7) cover consent. The parties must all have freely consented to and have understood whta was happening and what they were agreeing too unless (s.54(7)) they cannot be found or cannot give consent.
• s.54(8) says no payments 'beyond reasonable expenses' could have been given for any part of the arrangement, unless they are authorised by the court

You will notice that all of these conditions contain the word 'must', this seems unambiguous, right? If an applicant has applied outside of the time limit, or has paid large sums to organisations they would seemingly not be allowed a parental order, right? The Courts would say otherwise!

Time Limits

s.54(3) does not allow an applicant to bring an application outside of the time limit of six months from birth. This was once uncontroversial and unambiguous, for example in J v G (Parental Orders) 2013 Theis J stated: ‘parental order applications must be made within six months of the child’s birth, there is no power vested in the court to extend that period'. Again in JP v LP and Others (Surrogacy Arrangement: Wardship) 2014, Eleanor King J stated: ‘[t]here is no provision within the Act to provide for a discretionary extension to the statutory time limit’. see also: Re X and Y (Foreign Surrogacy) [2008]; Re S (Parental Order) [2009].

So what changed?

In Re X (A child)(Parental Orders: Time Limit) Munby J reversed this consensus. The case concerned a couple who had gotten a surrogacy arrangement in India. By the time they had applied for an order, the time limit had expired, the child being 2 years and 2 months old. This was because the parents had not known they were required to obtain a parental order.

The fact the language in the statute is unambiguous, coupled with the fact the previous cases had all affirmed the same thing: time limits cannot be extended, a parental order was indeed granted. But how? Munby J said that the counsel conducting research had not found any justification given by Parliament for the time limit. In a key justification for the landmark ruling, he said:

‘Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended the difference between six months and six months and one day to be determinative and one day’s delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.’

He further said that he was justified in 'reading down' the section in line with the Human Rights Act 1998, section 3 to read 'must' as 'may' and grant the order.

Though this judgement paved the way for later cases, it has many faults:

• Munby hinges his reasoning on the 'transformative affect' of the order and says the entire purpose of s.54 is to allow such an order to be made. This not only implies that the s.54 test is an outcome oriented procedure to allow something that will always be in the child's interest- something based on normative family ideals, but excludes any possibility of the section being designed as a gatekeeping measure. He fortifies this by claiming the only sensible outcome parliament could have intended would have been to facilitate granting the order, this goes completely against the dominant ideology of precaution on which surrogacy policy in the UK has been founded upon since the 1980s.
• The scenario of a 'one day' delay that he gives in his statement is vastly different to the actual facts of the case in which a two year delay had taken place, forshadowing the rulings future application in all kinds of time ranges, as said by Fenton Glynn: ‘there was nothing unique about this case that would make it distinguishable from the many hundreds of other surrogacy cases that go through the courts each year’.
• Ultimately Munby's distortion of the test renders s.54(3) useless given applicants compliance, or lack there of, with it has not impact on their claim.

Due to the cases unexceptional facts, it is unsurprising that the ruling has been used in precedent to justify applications made long after 6 months, for example in A v C, parental orders were granted to the parents of twins who were 13 and 12 and in Re A and B (Children), the court took its reasoning directly from Re X in saying ‘only parental orders will fully recognise the children’s identity as the Applicants’ natural children, rather than giving them the wholly artificial and, in their case, inappropriate status of adopted children’, before allowing orders to be granted to the parents of children who were 8 and 5 on the grounds that s.54 (3) is now discretionary

These rulings were notably made after The Human Fertilisation and Embryology (Parental Order) Regulations 2010 incoorperated section 1 of the adoption and children act 2002 into the HFEA 2008 s.54, meaning the welfare of the child is now the 'paramount' consideration when making decisions, in laying the groundwork of the premise that only a parental order is capable of fulfilling the child's welfare needs, these cases show that the court's will stretch the statute well beyond its limits to acheive this aim, something that is most notably seen in payments cases.

Payments

We have seen in time limit cases how the court's have allowed their reading of the paramountcy principle as neccessitating the parental order being granted to transform s.54(3) into an open gate, but how has the regulation of payments been affected?

To understand the basis problem with regulating surrogacy payments, it is important to remember that the Surrogacy Arrangements Act makes all payments unenforceable on the ground of their illegality in s.2(1). This is combined with a clause exempting surrogates and intended parents from incurring criminal convictions on the grounds of receving or giving payments in s.2(2) but this does not change the nature of payments to the court meaning ALL payments are unenforceable.

Contradictorily, the HFEA s.54(8) asks courts to assess whether 'unreasonable' payments have been made and, if they have, gives them an option to authorise them reteroactively. This means that s.54(8) has become a pseudo-enforcement measure for allowing large commercial payments to be made.

An attempt to define 'reasonable payments' was made in Re X and Y (Children) (Parental Order: Foreign Surrogacy) by Hedley J. Here he said the courts should assess:

• (i) was the sum paid disproportionate to reasonable expenses?
• (ii) were the applicants acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother?
• (iii) were the applicants party to any attempt to defraud the authorities?

Although this gives the guise of being a stringest test, in the case Hedley Stated himself: ‘[t]he 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.’ and subsequent cases after the incoorperation of the paramountcy principle like Re L have affirmed the fact 'the effect of [the welfare principle being paramount] must be to weight the balance between public policy considerations and welfare … decisively in favour of welfare. It must follow that it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making' meaning as of yet no applications have been declined on the basis of commercial payments having been made

References