Bio-Law III - donor conception and surrogacy Flashcards

Question

Parental Orders – Time limit

Answer 1

Re X (A Child) The couple applied two years and two months after the birth of the child, well over the 6 month limit in section 54. The court was willing to overlook and make an order but there was a difficulty: The couple had arrived in England having used a surrogate mother in India. If the court did not make a parental order the child would be living with the couple without any proper legal authorization. It was in child’s welfare to make an order. Held: the court was not prevented from making a parental order merely because the application was made after the expiration of the six-month period specified in section 54(3). In childs welfare to make order

Answer 2

Originally, only available for married couples ◦ S. 54, 2008 Act – civil partners/cohabitees ◦ “two people who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other” s. 54(2)© ◦ Single people cannot apply for parental order: Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 ◦ Human Rights Implications?

Answer 3

The child, Z, had been conceived with the applicant father's sperm and a donated egg using an unmarried surrogate mother in Illinois. Genetic link The father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z lawful arrangements - no exploitation The issues that arose in the case were, firstly, whether it was open to the court to make a parental order under section 54 (1) of HFEA Act 2008 on the application of one person. Secondly, could section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable the court to make a parental order in favour of one person? (Article 8 and 14 ECHR) The fundamental argument of the father was that the requirement of s 54(1) constituted a discriminatory interference with a single person's rights to private and family life. It was therefore inconsistent with Articles 8 and 14 of the European Convention. The legislation was contrary to Article 12 of the Convention which protects the right to found a family. The law and the government policy was to enable single persons to be eligible to adopt; and that it was artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. Case was rejected on the basis that "the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout.“ Subsequently, the government conceded that sections 54(1) and (2) of the HFEA 2008 are incompatible with the rights of the father and child under Article 14 in conjunction with Article 8, in so far as they prevent the father from obtaining a parental order on the sole ground of his status as a single person, as oppose to being part of a couple. On 3 January 2019, The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 passed which now allows single persons to apply for parental orders: This is a remedial order made under section 10 of the Human Rights Act 1998, which amends section 54 HFEA so that it is compatible with the European Convention on Human Rights. See: https://www.bindmans.com/knowledge-hub/blogs/uk-surrogacy-law-embraces-single-parents/ A brief but informative analysis of the single parent provision can be found here: https://www.barcouncil.org.uk/static/2a7bef2e-5747-4938-81f5d994d6fa6295/elizabethanderson23-essay.pdf

Answer 4

S. 54(8) no money/benefit exchange BUT court may authorise payments ◦ Generally, the court will grant parental order even if payments made Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam): A couple had made a surrogacy arrangement with a Ukranian woman who gave birth to twins using anonymously donated eggs fertilised by the male applicant’s sperm. ◦ The couple paid €235 per month and lump sum of €25,000 on birth ◦ Hedley J. made this judgement in open court to highlight the situation where children : “marooned stateless and parentless whilst the applicants could neither remain in the Ukraine nor bring the children home” ◦ Held: consent has been given and payment was acceptable. Hedley J: “The difficulty is that it is almost impossible to imagine a set of circumstances in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by refusal to make an order” Re L (A Minor) [2010] EWHC 3146 (Fam) A US commercial surrogacy agreement case where Hedley J gives reasons for making a Parental Order pursuant to Section 54 of the HFEA 2008 in favour of the applicants in respect of a child known as L. While the surrogacy agreement the applicants entered into in Illinois, USA was wholly lawful in that jurisdiction, it was unlawful in the UK because no payments other than reasonable expenses are lawful in this jurisdiction and the payments made by the applicants in this case went beyond reasonable expenses. Hedley J: Only in rare cases that court would withhold an order“...It underlines the court’s earlier observation that, if it is desired to control commercial surrogacy arrangements, those controls need to operate before the court process is initiated i.e. at the border or even before” Jackson: UK’s prohibition on commercial surrogacy is therefore completely ineffective (p. 851)

Answer 5

The law has struggled to adapt to changes in attitudes, a growing demand for surrogacy arrangements, and an increasing number of overseas surrogacy arrangements. There are a number of issues in the law that may be in need of reform: * Surrogacy and the single parent: There is no power for the court to make a parental order in favour of a single person (as opposed to a couple), which recently led to a High Court declaration of incompatibility with the Human Rights Act 1998 in the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam). *Parental orders: * Conditions for making a parental order are unnecessarily restrictive. * There is potential uncertainty caused by surrogates (and sometimes their husbands) being entered as parent(s) on the birth certificate of a child born as the result of a surrogacy arrangement. * Currently, parental orders can only be obtained after the birth of the child and upon an application to court by the intended parents. In one case, the effect of the law “was that the children were marooned stateless and parentless”; *In 2019, Law Commission of England and Wales and the Scottish Law Commission started a consultation to consider the current regulation of each aspect of surrogacy arrangements, as well as the application of the welfare (of the child) principle in surrogacy arrangements. *The final report alongside the draft Bill were published in 2023 and can be found https://lawcom.gov.uk/project/surrogacy/

Answer 6

*No commercial surrogacy. Surrogacy will continue to be altruistic. *Surrogacy arrangements will continue to remain unenforceable. *Permitted payments include medical and wellbeing costs, those to recoup lost earnings, pregnancy support, and travel. Prohibited payments include those made for carrying the child, compensatory payments, and living expenses such as rent. *Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth. *Surrogacy registry for children to trace their surrogates. *Introducing safeguards such as counselling and independent legal advice to reduce risk of arrangements breaking down. *Reforms to parental orders: allowing the court to make a parental order where the surrogate does not consent, if the the child’s welfare requires this. *Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis.

Bio-Law III - donor conception and surrogacy Flashcards

(30 cards)