Surrogacy

Question 1

Baby Gammy

Answer 1

Thai surrogate had twins, one was healthy one had problems, parents only wanted the healthy baby, couldn’t enforce the contract

Question 2

Re X

Answer 2

Almost impossible that by the time a case comes to court the welfare of any child would not be gravely compromised by the refusal to make an order. Order was made even though £12,000 was paid. Was the sum disproportionate to expenses? An affront to public policy? Overbearing to the will of the surrogate? Permitted in the relevant jurisdiction? Standard of living/context? Were applicants acting in good faith? Attempt to defraud authorities?

Question 3

Re Q

Answer 3

£8280 paid in respect of surrogate, order still made

Question 4

A and another and P v Others

Answer 4

Order granted where one applicant had died, not opening floodgates because it was a very specific situation?

Question 5

Re Z

Answer 5

Father had child via surrogate using his sperm and a donor egg, in Minnesota where arrangement was legal, in the UK child was made ward of court. Couldn’t grant a s54 application. Subsequently decided that UK law was incompatible with Article 8 read with Article 14.

Question 6

J v G

Answer 6

No discretion in relation to time limit

Question 7

JP v LD

Answer 7

Application was made at 7 1/2 months, court had no discretion to make a parental order, used CAO to grant PR

Question 8

Re X

Answer 8

Was time limit absolute? Munby - purposive construction of statute, did not think that Parliament could have intended parents to be barred from getting a PO forever if they were even one day late

Question 9

Re D&L

Answer 9

Mother gave consent but couldn’t be located after 6 week period, court granted order anyway. Call made by court that at the very least commissioning parents should meet surrogate or establish effective line of communication.

Question 10

G v G

Answer 10

Where parties changed their mind after the order -

application to set aside PO, rejected on welfare grounds

Question 11

RS v T

Answer 11

Surrogate gave consent at 6 weeks then disappeared, court granted order

Question 12

C & D v E, F, A & B

Answer 12

Surrogate refused to consent to PO despite wanting nothing to do with children. Court adjourned proceedings in the hope that she would change her mind. Parents should not have to apply for an adoption order in respect of their own children.

Question 13

Re GM

Answer 13

Domiciled - where they live and where they intend to be

Question 14

Leeds Teaching Hospital v A

Answer 14

Sperm mix up - no consent

Question 15

Evans v UK

Answer 15

Can consent be withdrawn after embryos are in storage?

Question 16

AB v CD & Z Fertility Clinic

Answer 16

Use of s55A

Question 17

X v Y

Answer 17

Clinic lost paperwork, declaration sought under s55A

Question 18

Ms M v Mr F and Mr H

Answer 18

Child conceived by intercourse rather than through sperm donation, not eligible for PO

Question 19

Re A & Others v HFEA

Answer 19

Consents to treatment had gone missing or were not in accordance with rules. Held that status as father shouldn’t be removed as a result of the clinic mislaying a form. Courts can correct obvious mistakes. Failure to comply with the HFEA directions as to consent doesn’t invalidate forms necessarily.

Question 20

B v C (Surrogacy: adoption)

Answer 20

B entered surrogacy arrangement with his own mother, C. C and husband were legal parents of the child, supported application by B for adoption, but he had to live with child for three years prior to adoption. Held that in relation to single parents contemplating parenthood through surrogacy and adoption “the process under which they can achieve this is a legal minefield”, all appropriate steps should be undertaken to achieve legal security.

Question 21

Z and B v C

Answer 21

Same sex Israeli couple applied for PO, were they domiciled in England? Agreement about PR for the children was drawn up and signed in Israel, held that the signing of this agreement wasn’t inconsistent with intention to move permanently to the UK, it had been done before visa application and was a template. Had implicitly alluded to move to another jurisdiction.

Question 22

Re L

Answer 22

Court retrospectively authorised payments made in excess of reasonable expenses when granting a parental order in respect of a child subject to a commercial surrogacy agreement in the USA. First case after HFEA 2008 imported provisions of s1 Adoption and Children Act which changed priorities, welfare of the child became paramount rather than first consideration.

Question 23

Re G

Answer 23

Concerned “tourists” coming into the UK, no order possible, alternative order made to free the child via adoption route.

Question 24

Re A and B (no 2)

Answer 24

Application for PO after foreign surrogacy arrangement. Application was after 6 months, the applicants were living seperately at the time of the application, both applicants were born abroad but had acquired a domicile of choice in the UK, and payments may have been made to surrogate mother. Held - parental orders could be made. Domicile clearly in UK. Lack of detail about payments - but any payments should be retrospectively authorised. Family life could be established despite the parents living seperately. Re X followed.

Question 25

Re C

Answer 25

Considered payments made to an agency rather than to the surrogate, fell under s54(8) as clearly involved in the “making of arrangements with a view to the making of the order”. Only the part of the payment exceeding reasonable business expenses would be captured, but in this case they authorised the whole payment as court would not identify which part of the payment related to legitimate running costs and which related to legitimate profit.