A common concern, in the UK especially, is about the surrogate changing her mind and seeking to keep the child. Whilst on the flip side the government are also concerned about the vulnerable nature of some surrogates who could unfairly be taken advantage of by financially dominant Intended Parents (“IPs”). That said, you may also remember the high-profile matter of Baby Gammy showing the surrogate was heavily reliant on the IPs following through with the transfer of legal parenthood, of the child she carried. So there is also a potential risk for the surrogate as there could be potential cases where an IP does not transfer legal parenthood , of a child born overseas placing the child at risk.
The recent case in which A City Law Firm , a Legal 500 Surrogacy Firm , acted for a mother, as described below, truly shows how these arrangements can potentially go wrong and without specialist advice and the determination of a parent the success of acquiring parental rights over a child through surrogacy could be thwarted.
Re B (Adoption: Surrogacy and Parental Responsibility) [2018] shows these risks are not just alive and present, in practice, but also takes you through the complexities of English law interacting with other jurisdictions . This case involved Ukraine law and the Hague Convention principles.
SUMMARY OF FACTS
The case of Re B revolved around a surrogacy arrangement entered into in the Ukraine. The arrangement included the intended mother X and her husband, Y. both UK residents The gametes of Y were used to fertilise an anonymous donor egg and create an embryo then implanted into the surrogate, Z in the Ukraine. Prior to birth, X and Y separated with Y making it clear that he wanted nothing to do with the child. X flew to Ukraine for the birth.
‘B’ was born in the Ukraine in August 2017 with medical issues necessitating additional attention and time with professionals in Ukraine. During the extended time in Ukraine, the intended mother X struggled to obtain a passport for B and was forced to then take up temporary residence in Ukraine. B was only able to travel to the UK in January 2018 following the grant of emergency travel documentation for B due to the death of X’s father.
When X though attended hospital shortly after her return to the UK, concerns were raised by medical staff about B and the absence of Parental Responsibility (“PR”), preventing her from making key medical decisions for the child. This lead to an urgent application in the High Court to obtain PR. Parental Orders reassign legal parental rights to the intended parents in the UK after surrogacy and would be the usual route after a surrogacy arrangement. While the delay is not usually an issue, this case highlights how it can be brought into focus. Unfortunately and in any event, because she was both single and not the biological parent, it was evident that she could not apply for a Parental Order and was left with a child arrangements order and, subsequently, an adoption application to consolidate the legal parenthood.
In the first instance, Williams J made no order but recited that the court considered X already had parental responsibility under Ukrainian law and as a consequence of Article 16 of the 1996 Hague Convention (Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respondent of Parental Responsibility and Measures for the Protection of Children) had parental responsibility here in the UK and therefore X could consent to medical treatment.
ENGLISH LAW – UKRAINE LAW – THE HAGUE CONVENTION 1996
The legal position covers both English Law and Ukrainian law but also now with the Hague Convention 1996 brought to the front to address PR matters arising from these cases and the gap between the child being born and the final Parental Order or other court order.
The law in Ukraine about X, Y and Z regarding B was neatly summarised in the judgment as being:
(1) X and Y are considered the mother and father of B;
(2) X and Y have parental rights/parental responsibility in respect of B;
(3) The birth certificate and the surrogacy arrangement do not put any restrictions on X or Y’s
ability to exercise parental responsibility; and,
(4) Z has no rights or responsibilities in relation to B.
The simplicity and practical outline of Ukraine law though when interacting with English law is deceiving to the casual observer.
The comments made by Hedley J in Re X and Y (Foreign Surrogacy) [2008] are no less relevant now as it was then ‘that until the IPs obtain a Parental Order, in the UK, Z will remain the sole legal parent of B’.
Yet Williams J raised an interesting point regarding the interaction with the 1996 Hague Convention which was brought into effect by Ukraine and the UK after the introduction of the Human Fertilisation and Embryology Act 2008.
The objects of the Convention are to “determine the law applicable to parental responsibility” and it goes on to “the attribution, exercise, termination or restriction of parental responsibility, as well as it’s delegation” (Article 3(a)). Article 16(3) goes on to state that “Parental responsibility which exists under the law of the State of the child’s habitual residence subsists after a change of that habitual residence to another State.”
In summary, which law in which country is applied to the arrangement can be determined by where the child is thought to reside.
It follows that where a child is habitually resident in Ukraine, and then moves to the UK, we would accept the governing law would therefore be the UK. In the alternative could it therefore also follow that a child who is born to a Ukraine surrogate and never having lived anywhere other than Ukraine be habitually resident in Ukraine?
Theis J undertook a detailed analysis of the facts, as required for determining any habitual residence. In contrast to domicile, a child’s habitual residence does not automatically flow from his or her parents but is a factual analysis in line with well-established principles of case law of the Supreme Court. For X, there was no real evidence to suggest any degree of integration in Ukraine other than “taking such essential steps regarding health and accommodation pending the return to this jurisdiction” as such the intended parents were UK residents. Further, Theis J observed that, “X and B were isolated there, did not speak the language, had unsatisfactory accommodation and were staying there longer than expected, which clearly created difficulties for X. Whilst the intention of X is only one factor, the evidence demonstrates that at no stage did X relinquish her habitual residence in this jurisdiction or plan to stay in the Ukraine any longer than she had to”. Although a child’s habitual residence can be independent from a parent/carer’s habitual residence, the facts of this case show that it would be difficult without the parent/carer taking substantial steps to acquire permanency too. As a consequence, Theis J found no habitual residence was acquired in Ukraine by B and so the Hague Convention does not apply.
IN SUMMARY
Without an order, X remains a legally unconnected to B, without either parental responsibility or recognition in any form as her parent (other than a social and psychological parent). As with any other person undertaking surrogacy, X required either a Parental Order (which she was not entitled to) or an Adoption Order.
The significance of legal parenthood cannot be understated and is necessary for all surrogacy arrangements to consider as part of the child’s lifelong welfare. Theis J highlights a particular quote from Re G [2002] UKHL which explains this succinctly as giving “a person legal standing to bring and defend proceedings about the child and makes the child a member of that person’s family”. Unsurprisingly, X therefore sought an Adoption Order and was granted it, but not without considerable stress at obtaining a passport for B and numerous court hearings to clarify the complexities and law surrounding PR and legal parenthood.
CONCLUSIONS
There is a happy ending in this case, but not without considerable effort on the part of X. If that had not been present, Z, the surrogate, would still be a legal parent unless she agreed to keep the child (without any legal rights in Ukraine), the young child could have been forced into the care system.
It has been over 10 years since the judgment by Hedley J in Re X and Y (Foreign Surrogacy) [2008] and this case highlights the “enormous complexities that can arise in the legal relationships between intended parents and children born as a result of surrogacy arrangements”. I think Mrs Justice Theis makes excellent critical observations throughout the judgment and I share her hope, “that the experiences in this case may alert others to the difficulties inherent in these surrogacy arrangements”.
The international element and conflict of laws may add a layer of complication, but it is no less of a risk for a surrogate based in the UK if the IPs separate and fail to take the next legal steps. It will come as no surprise to the reader, therefore, that myself and ACLF are ardent supporters of reform in this area of law. I wait with bated breath for the Law Commission to completes their recommendations and Parliament to pass the law protecting both surrogates and IPs and more importantly the children.
The fundamental lesson from cases like these is that you need to fully appreciate the laws of each jurisdiction involved, take sound legal advice early on and as soon as circumstances change review that advice and adapt appropriately. ACLF cannot promote enough the importance of understanding all the nuances prior to embarking on surrogacy and applying for a parental order if returning to raise your family in the UK.
Our client in this particular case stated:
A City Law Firm, has been my “Family and Surrogacy” Lawyers for 3 years now . A City Law Firm I can highly recommend as they has sailed through all these complexities and the outcomes have always been in our favour, so I am delighted. I have recommended the firm to many clients. Some who have taken up their services and have found them to be as outstanding and wonderful as I have. Everybody has been really happy with the firm – I would not recommend another company after having being looked after by the best. When it comes to being polite and encouraging their team are and when it comes to be tough to get the outcome of the best interest of the child they are capable of everything.