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Edward Bennett
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Part 1 - Surrogacy and legal parentage: let intentionality prevail
Date:1 MAR 2019
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In this new 2-part series, Mavis Amonoo-Acquah, a barrister at Lamb Building Chambers, discusses issues surrounding Surrogacy Law, Legal Parentage and proposed reform, in light of Californian Law precedents.

 


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It has long been argued that the law of Surrogacy in England and Wales is not fit for purpose. For decades, as society changed and the make-up of families grew more varied and diverse, it became ever more apparent that the laws in place failed to adequately reflect the changing dynamics of society and family. Nowhere was this exemplified to a greater extent than in the case of Re Z (A child: Human Fertilisation and Embryology Act: Parental Order)[1].

The case of Re Z 

In Re Z, the Applicant was the biological father of the subject child who had been born through a surrogate in the USA. The father had followed the correct legal procedure in the USA in order to relieve the surrogate mother of her legal rights and responsibilities, and assume legal parentage of the child as a sole parent. Although the father was recognised in American Law as the legal parent, upon the father’s return to the UK, he was not recognised as the child’s legal parent in English Law and indeed the surrogate, as the child’s birth mother, was still considered to be the child’s legal (and in fact only) parent. In order for the court of England and Wales to have recognised the father as the legal parent of the child instead of the surrogate mother, the father had to obtain either an adoption order under section 46 of the Adoption and Children Act 2002, or  a parental order in accordance with section 54 of the Human Fertilisation and Embryology Act 2008 (hereinafter ‘HFEA’).

Understandably, the father did not wish to adopt a child which was biologically his, thus, he elected to obtain a parental order and accordingly made the relevant application to the court. Before the court could consider granting the parental order, the father had to demonstrate that he satisfied the requirements stipulated in section 54 HFEA. The crux of the case rested on the following provisions within section 54 HFEA:

(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.

(ETC)….

Sir James Munby, (then the President of the Family Division), upon examination of the legislation in section 54 HFEA, held that as a single parent applicant, the father could not bring himself within the parameters of section 54 as detailed herein, and therefore could not be granted a parental order.

Parental Orders vs Adoption Orders – a disparate position

Throughout society, the form that a family takes looks different from one home to the next. There are families with a male and female parent in the home, 2 male parents, 2 female parents, in some cases 3 parents and in others, single parents. In the ordinary course of adult relationships and establishing family life, society does not prohibit adults from becoming single parents, and bringing up a child on their own. This is a fact recognised by the Adoption and Children Act, and this disparity was pressed upon by the father’s representatives in Re Z. It was argued on behalf of the father that as the Adoption and Children Act did permit a single person to make an application to adopt a child, it should be read in to section 54 HFEA that the section could also apply to a single intended parent, thereby creating parity. Sir James Munby disagreed, saying at paragraph 36 of his judgment:

“The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling.”

In light of this disparity and the outcome of Re Z, the matter returned to court soon thereafter in Z (A Child) (No 2)[2] wherein the President was asked to declare that section 54 HFEA was incompatible with rights of both the father and the child, either under Article 8 alone; or, under Article 8 taken in conjunction with Article 14 of the Human Rights Act 1998. The then President readily made the declaration sought, and rightly so, for there was no sound reason, particularly given the fabric of society and the provision in the Adoption and Children Act, for single parents to be treated differently to couples under the scheme of the HFEA. It was therefore right for the court to make clear that in barring single parents from applying for a parental order, the HFEA was unfair and  discriminatory.

A step forward

Following the above decision in Z (A Child) (No 2) and further campaigning from supporters of Surrogacy Law reform, on 3 January 2019, the direction of the tide finally changed, and with the enactment of The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, the HFEA was amended to include a new section 54A . Part of it reads as follows:

“54A Parental orders: one applicant

(1) On an application made by one person (“the applicant”), the court may make an order

providing for a child to be treated in law as the child of the applicant if—

(a) the child has been carried by a woman who is not the applicant, as a result of the

placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of the applicant were used to bring about the creation of the embryo,

and

(c) the conditions in subsections (2) to (8) are satisfied.

(2) Except in a case falling within subsection (11), the applicant must apply for the order

within the period of 6 months beginning with the day on which the child is born.

(3) etc…

The enactment of this new amendment means that single fathers such as the father in Re Z, and single mothers, may apply for a parental order – if, they are biologically related to the child (section 54A(1)(b) HFEA). Whilst this brings the law more in line with different societal definitions of a family, and more compatible with the Human Rights Act, the exclusion of single parents who have used donated gametes and are therefore not biologically related to the child, is arguably, unsatisfactory. In addition, section 54(1)(b) HFEA also dictates that at least one of the applicants in a couple must be biologically related to the child. Although it is probable that the majority of intended parents having children through surrogacy will be biologically related to the child in some way (whether that is a single parent or a couple where they use gametes from both or 1 of the intended parents), that is not always the case.

A hypothetical

It is possible to envision numerous circumstances where intended parents are unable to use their own gametes for health reasons, but still wish to create a family using donated gametes. One could even foresee a circumstance where the best-laid plan of a couple entering into a surrogacy agreement goes awry in tumultuous circumstances; consider the following hypothetical. 

‘Intended Parent A’ and ‘Intended Parent B’, are an unmarried couple who decide to have a child through a surrogate and use the gametes of Intended parent A alongside donor gametes in order to create the child. Therefore, ‘A’ is biologically related to the child, but ‘B’ is not. Six weeks after the child’s birth, Intended parents A and B will be entitled to apply for a parental order as a couple under section 54 HFEA. During the pregnancy however, the relationship breaks down and the couple separate. Subsequently,  Intended Parent A states that they no longer wish to become the parent of the as yet unborn child, but Intended Parent B does. Under the new law (section 54A HFEA), as Intended Parent A has the biological link to the child, they can apply for a parental order as a single applicant, but there is no law which permits Intended Parent B to apply for a parental order. In considering this hypothetical, the query arises – why must the law in Sections 54(1)(b) and 54A(1)(b) HFEA restrict single and non-biologically intended parents in this way? Is it really right that biology and paternalism alone dictate legal parenthood, rather than the clearly expressed intention of the parties?

A leaf out of California’s book

Surrogacy Law in the American state of California is far more developed than the laws in place in England and Wales. It is therefore possible to argue that as we in England and Wales seriously begin to consider widespread reform, we can look towards the precedents and prevailing laws in California for guidance and answers to these questions posed. In 1998, the Californian court in the case of In re marriage of Buzzanca[3] was faced with a dilemma not too dissimilar from the hypothetical outlined above. In Buzzanca, a husband and wife sought to have a child by surrogate using a donor egg and donor sperm from anonymous donors – therefore neither of the Intended Parents were biologically related to the unborn child. During the pregnancy and prior to the child’s birth, the husband filed for divorce and in his divorce petition, stated that the parties had no children. The wife, knowing that a baby was due to be born by surrogate, contested the petition, stating that the parties were in fact expecting a child.

When the matters reached trial, the husband argued that he was not the legal parent of the child due to the lack of biological connection. The trial court agreed and held that the husband and wife were not the legal parents of the unborn child. As the surrogate and her husband also lacked a biological connection to the child, astonishingly, the court held that the child had no legal parents. Whilst the subsequent Appellate court also acknowledged that neither the husband or wife were biologically related to the child, the court nonetheless reversed the decision of the trial court and held that the husband and wife were indeed the legal parents of the child. In reaching this decision, the Appellate court duly accepted and applied the intentionality principle which had been established in the first seminal surrogacy case before the California Supreme Court, Johnson v Calvert[4].

The intentionality principle rests on the premise that at the beginning of the surrogacy process, the Intended Parents had a clear and expressed intention to create, parent and care for the unborn child. But for the intention of the Intended parents to have the child, and the purposeful actions they undertook to bring that intention to realisation, the surrogacy process would not have been entered into and this particular child due to be born. The husband’s subsequent rescission in Buzzanca did not alter that fact; and the lack of biological connection could not negate it. The Appellate court said in conclusion that:

“Even though neither [the wife] nor [the husband] are biologically related to [the child], they are still her lawful parents given their initiating role as the intended parents in her conception and birth. And, while the absence of a biological connection is what makes this case extraordinary, this court is hardly without statutory basis and legal precedent in so deciding. Indeed, in both the most famous child custody case of all time, and in our Supreme Court's Johnson v. Calvert decision, the court looked to intent to parent as the ultimate basis of its decision. Fortunately, as the Johnson court also noted, intent to parent “ ‘correlate[s] significantly’ ” with a child's best interests.”

In Buzzanca, although neither of the Intended Parents were genetically related to the child, they were, in Californian Law, still considered to be the Intended Parents and thus legal parents, further to the principles of intentionality and in turn, causation. The same decision would not have been made in English Law. Pursuant to sections 54(1)(b) and 54A(1)(b) HFEA, with no biological connection to the child, neither Intended Parent in Buzzanca would have been able to apply for a parental order (whether together as a couple or apart)in English Law and would have had to apply for an adoption order in order to be recognised as the legal parents of the very child they created.

The court’s decision in Buzzanca, which favoured intentionality over biology, is a stance which is supported in law by California Family Code - FAM §7962 part (c) as it defines an “Intended Parent” asan individual, married or unmarried, who manifests the intent to be legally bound as the parent of a child resulting from assisted reproduction.” This definition speaks nothing of biology and has no restriction on becoming the legal parent to a child born by surrogate (or any other assisted reproduction), based on relationship status - it simply relates to intentionality. Thus intentionality is the principle which underpins almost all decisions made by Californian courts when surrogacy disputes arise. It is simply for the court to ask - at the time of, or prior to conception, what did the parties intend? Who did the parties envision would exercise responsibility for the welfare of this child throughout the child’s minority? Moreover, how can the court be sure of the parties’ intentions? In California, the answer is simple. The court can be made acutely aware of the parties’ intentions regarding legal parentage prior to the beginning of any surrogate pregnancy, as the same will be articulated in no uncertain terms within a legally binding Gestational Carrier Agreement.

Could Gestational Carrier Agreements, which bring intentionality to the forefront of legal parentage determinations, be the answer in English Law to resolving dilemmas such as the earlier hypothetical, and light the way forward in the development of English Surrogacy Law and legal parentage reform?  In Part 2 of this series, I will further explore these principles and proposals and consider how the landscape of English Surrogacy Law could change, in light of Californian Law guidance.

Mavis Amonoo-Acquah is a Family Law Barrister specialising in International Family Law, Public and Private Children Law and Alternative Families. Following secondment with a leading Fertility Law Firm in Los Angeles, Mavis has a thorough understanding of both English and Californian Surrogacy Law and Practice. Follow her on Twitter here.



[1] [2015] EWFC 73

[2] [2016] EWHC 1191 (Fam),

[3] 61 Cal. App. 4th 1410 (Cal. Ct. App. 1998)

[4] 5 Cal. 4th 84 (Cal. 1993)


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