Theis J, 31 March 2015)
Private law children –
Surrogacy – Parental order – Agreement with South African surrogate – Domicile
– Whether the requirements of s 54, HFEA had been met
The full judgment is available below
The application for a parental order was allowed.
Neutral Citation Number:  EWHC 1756 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Tuesday, 31st March 2015
MRS. JUSTICE THEIS:
MRS. JUSTICE THEIS
- - - - - - - - - - - - - - - - - - - - -
B E T W E E N :
- - - - - - - - - - - - - - - - - - - - -
Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
One Quality Court, Chancery Lane, London WC2A 1HR
Tel: 020 7831 5627 Fax: 020 7831 7737
- - - - - - - - - - - - - - - - - - - - -
MISS L. TAPSON (instructed by Natalie Gamble Associates) appeared on behalf of the Applicants.
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T
This is an application for a parental order in relation to a little girl A, who was born in August 2014, so is just over seven months of age. The applicants are H and M. The respondent is C. She is a widowed lady who lives in South Africa and was the surrogate mother who gave birth to A.
A was born in South Africa following a surrogacy arrangement. She was conceived following IVF treatment with an embryo created from sperm from M and an egg from a third party donor. There are three particular features to this case: firstly, it is this court’s first experience of dealing with a surrogacy arrangement from South Africa; secondly, the court has agreed to proceed, unusually in my experience, with A not being present in the jurisdiction and joining by way of video link; and, thirdly, the Parental Order Reporter has been assisted by enquiries being undertaken by a social worker in South Africa to assist with the welfare enquiries that had to be made.
This is the second application for a parental order the applicants have made. They made a previous application in relation to a little boy called B. He was born in April 2011, again in South Africa, but with a different surrogate mother. He is now three years old. He was made the subject of a parental order in favour of the applicants by order of Hedley J on 12th January 2012.
In considering this application the court has the benefit of detailed statements filed by both H and M dated 15th November 2014. As they know from the previous proceedings in relation to B, there are two matters this court has to be satisfied about: firstly, that the criteria under s.54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) are satisfied; and, secondly, that A’s lifelong welfare needs, as set out in section 1 Adoption and Children Act 2002, will be met by the court making a parental order.
Criteria under section 54 HFEA 2008
Dealing with the criteria under s.54, first: the biological connection between one of the applicants and confirmation that the child was carried by a surrogate mother who was not one of the applicants is quite clear from the evidence I have. The letter, dated 8th September 2014, from Professor Kruger confirms M’s biological connection with A, he oversaw the procedures undertaken leading to the embryo transfer on 25th November 2013. It is also quite clear from the written evidence that C carried A. The second matter the court has to be satisfied about is the status of the applicants’ relationship. They have been living together since 1998 and, in terms of the requirement under s.54 (2) (c), they have clearly been in what is termed “an enduring family relationship”. It is a relationship that is secure and stable and demonstrably on the evidence meets that description. The third matter is that the application should be made within six months of A’s birth. She was born in August 2014. The application was made on 4th September 2014, so well within six months. The fourth matter is the court has to be satisfied that her home, at the time when the application was made in September 2014 and when the court is considering making the order, has been with the applicants. She has had her home almost from birth with the applicants in South Africa, her home was clearly there when they made their application in this jurisdiction in September 2014 and she is obviously still living with them.
The next matter is the question of domicile. The court has to be satisfied that at least one of the applicants is domiciled in this jurisdiction. What is submitted is that H has retained his domicile of origin in this jurisdiction. I have been directed in the skeleton argument to the case of CC v. DD  EWHC 1307 at paras.20-23, which summarises the principles the court should consider when looking at the question of domicile. H was born here in 1964. He lived in this jurisdiction until 2007, since when his varied business interests have taken him to live abroad in various jurisdictions. It is, he states, his intention in due course to return back to this jurisdiction to live. Since he left in 2007 he has lived variously in Switzerland, France and since 2010 has been based in South Africa. As described in his statements, he intends to return here to live, probably on the happening of one of a number of events; his retirement or in the event of his parents suffering ill-health, or on their demise. Hedley J heard oral evidence in January 2012 and determined that H had retained his domicile of origin in the proceedings in relation to B. The updating statement from H updates his circumstances. It appears that most of his work has changed to being based in the United Arab Emirates and Africa. He has given up his residency permit in Switzerland and is applying for residency, for the purpose of pursuing his business interests, in Dubai. The applicants’ current regime is to split their year between South Africa (from September to May) and their home in France (from May to September), with regular visits back to this jurisdiction to spend time not only with H’s parents, but also his three siblings and their respective spouses. The plan is still to return back to this jurisdiction, possibly looking at living in a property in the South West. They have decided that, in due course, they will want both children educated in this jurisdiction, probably from the start of their secondary education.
H’s domicile of origin subsists unless a domicile of choice elsewhere is established. He does not assert now, and did not in the previous proceedings, that his domicile has changed. Since leaving the United Kingdom in 2007, he has lived in various jurisdictions related to his business interests but does not have any intention to reside in any of those jurisdictions permanently or indefinitely such as to make it his permanent home. He has clearly articulated his intention in the 2012 proceedings, repeated in these proceedings, to return to live in the United Kingdom in the foreseeable future; on his retirement or on the happening of one of the events outlined above. As he states in his statement, he regards himself as somebody who has strong regional roots here. That is where most of his family is still based and where the gravitational force is when he returns back to this jurisdiction.
The position in relation to retaining his domicile of origin is supported by the fact that, as with B, there has been an application for a parental order in relation to A so that his and M’s legal status in relation to A is secured in this jurisdiction in the fullest possible sense. For those reasons, I am entirely satisfied that the position has not changed from that as determined by Hedley J in January 2012, H’s domicile of origin remains here and therefore that requirement is met.
The next requirement can be dealt with shortly; both applicants are over 18 years. H is 51 years and M 46 years.
The penultimate matter the court has to consider under s.54 is the question in relation to consent. The court must be satisfied that the surrogate mother has consented freely and with full understanding (with full knowledge and unconditionally as to what she is consenting to) to the making of a parental order and that consent must be given more than six weeks after A’s birth. Within the papers that I have is a signed and notarised consent dated 10th October 2014, which is just over 8 weeks after A’s birth. In addition, there is evidence to demonstrate that she has fully co-operated with the process. The most recent communication from the surrogate mother is the email, dated 13th March 2015, where she is wishing the applicants well in relation to this hearing. Of course, the background as to her involvement requires some explanation. She works for the applicants in South Africa. At the time when they were considering the arrangements to have a second child there were difficulties in the surrogate who had been used for B conceiving. As a result, C offered to be the surrogate mother. There were, of course, discussions that took place with respective families and there is clear evidence that there was careful consideration given as to the appropriateness of this arrangement being entered into. However, having discussed the matter with friends and family and following psychological screening, they embarked on the procedure that is provided for in South Africa.
This has been set out by the extremely helpful report by a lawyer with expertise in this area, S. Dussett, dated 28th November 2014. That report describes the procedure in South Africa which came into effect on 1st April 2010.
There is a court supervised procedure that makes orders prior to any embryo transfer. As a result of the provisions in the Children Act 2005, the prospective parents are required to bring an application to the High Court for an order confirming the surrogacy agreement and ordering that the child born following the agreement and embryo transfer is the child of the commissioning parents, not that of the surrogate mother. As Ms Dussett states: “As a result of that procedure, the adoption process is therefore not necessary”.
As regards the general procedure she states:
“The surrogate motherhood agreement must be in writing and must be entered into in South Africa and confirmed by the High Court within whose area of jurisdiction the couple are domiciled. The parties may not proceed with the artificial fertilisation procedure until the surrogate motherhood agreement is confirmed by the Court. The parties involved in the application are the commissioning parents and the surrogate mother. If the surrogate mother is married or has a partner they, too, must be joined in the proceedings.”
The Act sets out the requirements for a surrogate motherhood agreement and she has given the details in bullet point form. I think it is helpful to be able to set them out. She says:
“At least one of the commissioning parents and the surrogate mother must be domiciled in South Africa”. In this case that was clearly M. She continues:
“The court will not confirm an agreement unless it is shown that the commissioning parents are unable to give birth to a child and this condition is permanent and irreversible. The third matter is the conception of the child must, if possible, involve the gametes of both parents. But if this is not possible the gametes of at least one commissioning parent must be used. The parents must in all respects be suitable persons to accept parenthood of the child or children to be born, and the surrogate mother must be a suitable person to act as a surrogate. The surrogate mother may not use the surrogacy as a source of income. She must enter into the agreement for altruistic reasons and not commercial purposes, and the court must be presented with a documented history indicating that the surrogate mother has had at least one viable pregnancy and delivery and has a living child of her own.”
Ms Dussett goes on:
“The attorney must draft affidavits containing the above mentioned information for each of the parties involved and an application must be made to the High Court. The affidavits and surrogate motherhood agreement must be presented to the court by an Advocate of the High Court. The Judge will either grant the order or dismiss it with reasons should the requirements of the Act not be met. The attorney then removes the contents of the court file to ensure that the public does not have access to the court file and therefore anonymity is guaranteed.”
She then describes in her report the procedures that took place in this particular case, which comply with the general procedures I have just outlined. On 29th October Advocate McCurdy appeared in front of the Honourable Mr. Justice Dolamo of the Cape Town High Court, and requested an order from the Judge confirming the surrogate motherhood agreement entered into between the parties with a direction that the child born of the surrogate mother, in accordance with the agreement, is for all purposes the child of the commissioning parents from the moment of birth. There was a request for a direction that both of the commissioning parents shall have full parental rights and responsibilities of the child, and that the surrogate mother would have no rights of parenthood or care and that the child would have no claim for maintenance against her. Further, there was a request for a direction that no adoption procedures would need to be followed as the child would be registered as the child of both commissioning parents and that the doctors be authorised to perform the artificial fertilisation procedures. That order was made on 29th October.
The surrogate mother co-operated entirely with this process that is overseen by the High Court in advance of A’s conception, which extinguished her status as A’s mother.
So, as a result of all those matters, in particular and importantly the consent that she signed on 10th October, the co-operation she has had with the procedure in South Africa and the completion of the acknowledgment of service (C52) on 10th October, I am entirely satisfied that the surrogate mother, in the circumstances of this case, has freely consented with full understanding in relation to this court making a parental order.
The final matter under s.54 is the question in relation to payments. There are no payments, other than payments for expenses. It is an altruistic surrogacy arrangement. The applicants have set out the expenses they have paid, as permitted under the legal provisions in South Africa. They paid the sum of 9,850 South African Rand, which is the equivalent of about £622 to cover incidental and out of pocket expenses. They did make a payment in relation to the egg donor agreement, but, as has been made clear, that is not caught by the provisions of s.54 (8).
For the reasons outlined above all the criteria, I am satisfied, in relation to s.54 are met in this case.
Turning to the question of welfare. The court is bound by s.1 of the Adoption and Children Act 2002 to consider A’s lifelong welfare needs. The court has been assisted in relation to this aspect by two reports that are before the court: firstly, the report undertaken by Miss Malherbe, a qualified social worker who practices in South Africa. Her report is dated 17th December 2014. She sets out the enquiries that she undertook visiting the family home in South Africa, speaking to both of the applicants, seeing A, talking to those who assist in the care for her and also, importantly, seeing B. She raises no concerns in relation to any welfare matters in her comprehensive report. Following that report, the Parental Order Reporter in these proceedings, Mr. Abrahams, has provided a report dated 18th March 2015. In that report, he sets out the reliance that he places on the enquiries undertaken by Miss Malherbe. He also met H on 16th December 2014 here and had a Skype family meeting with everybody on 4th January 2015. His recommendation, having considered the welfare checklist within his report, is that a parental order should be made.
The lifelong welfare needs of A include ensuring her legal relationship with those who care for her is put on the securest footing possible. As a matter of English law, unless an order is made, the respondent surrogate mother is her legal mother, although that is not the legal position in South Africa. It is clearly in A’s lifelong interests that there is consistency as regards her legal status in relation to those who care for her across the relevant jurisdictions where she is likely to live. This can only be achieved in this jurisdiction by the court making a parental order, which is the order the court will make.