(Family Court, Russell J, 30 June 2016)
Private law children – Surrogacy – Child arrangement order – Surrogate refused to consent to parental order – Whether surrogate fully understood the arrangement – Welfare determination of where child should liveA child arrangements order was made for the child to live with the surrogate mother and spend time with the commissioning and biological father.
The commissioning parents already had twins born to a surrogate mother who was paid £12,500. After parental orders were obtained they sought to enter into another surrogacy arrangement with X, who had learning difficulties and who they identified through a Facebook forum.
They entered into a surrogacy agreement, based on a template they found online for overseas commercial surrogacy agreements, with X after meeting her at a motorway service station. Thereafter, X travelled to Cyprus with the commissioning parents where two embryos were created using the father's sperm and donated eggs which were implanted into X. She subsequently fell pregnant with twins.
X had apparently had doubts about the arrangement prior to travelling to Cyprus, but claimed she felt intimidated by the father and did not feel she could express her feelings. She considered a termination as the pregnancy developed but was persuaded not to. However, she miscarried one of the babies but informed the commissioning parents that she had miscarried both of them. When they discovered that one of the babies had survived, they applied to the High Court for a declaration of parentage, a child arrangements order, prohibited steps orders and a specific issue order.
There could be no question of a parental order being made, since the requirement under s 54(6) of the HFEA 2008 for the surrogate to give her unconditional and informed consent had not been met. Not only did she not consent, but it was questionable whether X had a full understanding of the process at any stage. Pursuant to s 33 of the HFEA 2008, X was to be treated as the child's mother.
In determining who the child should live with, considerable emphasis was placed on the behaviour of the commissioning parents. They had demonstrated an inability to understand the importance of the child's relationship with his mother or to promote and support it. After conducting a full welfare analysis the court found that X was better able to meet the child's emotional needs and that he should live with her and her partner. He would have contact with the commissioning parents one in every 8 weeks until he reached the age of 2.
Neutral Citation Number:  EWFC 34
Case No: ZC15P00907
IN THE FAMILY COURT at the ROYAL COURTS OF JUSTICE
IN THE MATTER OF THE HUMAN FERTILIZATION & EMBRYOLOGY ACT 2008
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF Z (A Child)
Royal Courts of Justice
MS JUSTICE RUSSELL
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A & B
1st & 2nd Applicants
Z (A Child by his guardian)
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Marisa Allman (instructed by Direct Access) for the 1st & 2nd Applicants
Deirdre Fottrell QC and Richard Jones (instructed by Ison Harrison) for the 1st Respondent
Seamus Kearney (instructed by Cafcass Legal) for the child
Hearing dates: 11th to 16th April 2016
- - - - - - - - - - - - - - - - - - - - -A and B v X and Another  EWFC 34