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?
