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View from the Foot of the Tower: Parental orders and Goldilocks

Date:23 FEB 2015
Care Lawyer
The Human Fertilisation and Embryology Act 2008 set up provisions for people who have entered into a surrogacy agreement to obtain a parental order, giving them legal rights.

There have been a raft of recent authorities on these applications, particularly relating to surrogacy arrangements overseas, the most recent being decided by Mrs Justice Theis in Re AB and CD (Surrogacy: Time Limits) 2015 [2015] EWFC 12.

That case was complicated even further than is usual with the HFEA because the applicants had moved from Australia to England after the birth of the child, and had been pursuing an adoption application for the child (believing that they were barred by the statute from applying for a parental order for being out of time – which was the case prior to the President’s decision in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) of which much more later).

Mrs Justice Theis stressed the benefits for commissioning couples to get legal advice and make proper plans:

[5(1)] This case highlights, once again, the need for those undertaking surrogacy arrangements abroad to take specialist advice. In many of these cases large sums of money are paid for the expenses in undertaking these arrangements. Figures in excess of £15 - 20,000 are not uncommon. Commissioning parents should, at the very least, get an outline of the relevant legal steps they need to take to ensure their position and, more importantly that of any child born as a result of the arrangement, is protected. The cost of that advice is likely to be a minimal expense in the context of the large sums spent on the surrogacy arrangement overall.

[5(2)] Commissioning parents should be encouraged to:

(a) Promptly make applications for parental orders after the birth of the child, even if they are not present in the jurisdiction, providing at least one of them is domiciled in this jurisdiction (s 54 (4)(b). It is only a parental order that provides lifelong security for the child, as it recognises the commissioning parents as the legal parents of the child with all the positive benefits that flow from that. Without that order their legal relationship with the child is best described as precarious; in most cases without such an order being in place, the surrogate mother (and her husband, if she is married) remain the legal parents of the child.

(b) Take steps to ensure there are clear lines of communication with the surrogate mother, and her husband if she is married, to facilitate the giving of consent after the expiry of six weeks from the birth (as required by section 54 (6) and (7)). This should ideally include meeting the surrogate mother.

(c) Ensure there are coherent records regarding any sums paid under any agreement, in particular those that are paid to the surrogate mother.'

[Providing such legal advice is not without risk, as a result of Mrs Justice King’s decision in Re JP v LP [2014] EWHC 595 (Fam) that the statutory offence in s 2 of the Surrogacy Arrangements Act 1985 is capable of biting on a lawyer who charges for drawing up agreements:

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1) No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;
and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

(2) A person who contravenes subsection (1) above is guilty of an offence; ]

There were two parts of the Parliamentary provisions which seem now to be more honoured in the breach than the observance. The first the time limit in s 54(3) that the application MUST be made within 6 months of the child’s birth, and the second the provision in s 54(8) for the court to scrutinise payments that have been made.

Why did those Parliamentary provisions come about? Well, much of this relates to the public revulsion of the case of Mr and Mrs Kilshaw who were pioneers in the early days of the internet and were the first people in England to be publicly linked with buying a baby from overseas, paying £8,000 to adopt twins from America.

http://news.bbc.co.uk/1/hi/uk_politics/1627061.stm Not being celebrities, it was of course not acceptable for these people to circumvent adoption process and scrutiny by making a cash payment. [Removes tongue from cheek]

The President in Re X disposed of s 54(3), in some judicial sleight of hand, allowing a parental order to be made although the application was made 2 years after the birth rather than the six months of the statute.

'[55] Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. 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. …

[56] I have considered whether the result at which I have arrived is somehow precluded by the linguistic structure of section 54, which provides that "the court may make an order … if … the [relevant] conditions are satisfied." I do not think so. Slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended.

[57] I conclude, therefore, that section 54(3) does not have the effect of preventing the court making an order merely because the application is made after the expiration of the six month period. That is a conclusion which I come to, without reference to the Convention and on a straightforward application of the principle in Howard v Bodington (1877) 2 PD 203.'

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For no good reason at all, the case where the President described a local authority’s actions as being 'a tottering edifice built on inadequate foundations' popped into my mind, because the President’s foundations here are constructing an edifice. As an authority, it is relied upon in Re AB and CD as authority to allow the parental order to be made on an application that is two and a half years out of time. No doubt others will follow.

On the second aspect, that of cash payments to the surrogate mother, the President very neatly captures in Re X the spirit of this statutory provision

'75 ... (1) the question whether a sum paid is disproportionate to "reasonable expenses" is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will.

(2) the principles underpinning section 54(8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.'

The Court, in looking at the sums paid by the applicant to the surrogate mother have to consider whether this sum is so low that it is exploitative, or so high that it amounts to ‘buying a baby’.

There’s a Goldilocks effect here – there’s a space between too low and too high where the sum is just right. That can’t be too narrow a space, there must be a decent margin.

It is surprising, looking at this, that each and every applicant for a parental order has managed, without clear guidance or explicit recommendations of what that sum should be to pitch their fee in just the right area. Every one of them has walked into a room with three bowls of porridge and picked the one that was just right.

Even though the figures range from in English money from £2,500 to £29,000 in the last four years of reported cases, each of those have been in the Goldilocks sweet spot of not too high, not too low.

I have argued before that the bald figure doesn’t really tell you everything - £5,000 can be worth a great deal more to a person in Bangladesh than in America, for example.

So, the biggest market for overseas surrogacy at the moment is India. The average monthly income in India is £191. So when English people are paying an Indian mother £3,500 (which seems the current going rate – the agency setting up the deal gets about three times as much as the surrogate mother – in Re AB the agency received nearly £14,000 and the mother £2,250… how can that not be considered exploitative?), they are giving that Indian mother the equivalent of 18 months wages. To convert that back into what it would mean for an English mother in the same position, one would be talking about £36,000.

[The going rate in America seems to equate to just under twelve months average income, so although the bare cash sum is less to a surrogate from India the relative amount is markedly different.]

Perhaps it is just me, but I think if you approached an English woman, perhaps on benefits or low income, and offered her £36,000 to have a baby for you, I would think that this would come into the ‘too high’ category and is getting into the ‘buying a baby’ territory. The temptation to see the offer as a way of resolving other problems might place undue pressure on her to accept the offer.

The problem for the courts is that the only remedy is to not make the parental order. They can’t order that the applicants pay more money, or that the money they had paid should be recovered, or that there should be a fine. They can either make the parental order, or not. And thus, even if there is some disquiet, they make the order.

The President summed it up very well in Re X.

'75 ... (3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child's welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: "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", per Hedley J in [In re L (A Child) (Parental Order: Foreign Surrogacy) [2010] EWHC 3146 (Fam), [2011] Fam 106, [2011] 1 FLR 1143] at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without "moral taint" in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child's lifelong welfare.'

Are the protections in s 54(3) and 54(8) being used in a meaningful way? It is hard to see what section 54(3) actually does in practice post Re X - if you were rewriting the following:

'the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born'.

With the meaning post Re X, the only sensible redraft would be to put a line through the entire clause.

Is the current porridge of parental order case law just right?