In the recent case of JP v (1) LP (2) SP (3) CP (A child by his guardian) (2014), Mrs Justice Eleanor King warned of the dangers of informal surrogacy arrangements outside regulated fertility clinics, when an intended mother was left with no parental rights.

“The facts of this case stand as a valuable cautionary tale of the serious legal and practical difficulties which can arise where men or women, desperate for a child of their own, enter into informal surrogacy arrangements, often in the absence of any counselling or any specialist legal advice.”

Background

The intended mother, JP, unable to conceive naturally following an earlier hysterectomy, arranged for a close friend (SP) to be artificially inseminated at home with her husband’s (LP’s) sperm. When SP became pregnant, all three parties agreed that the birth would take place at the Leicester Royal Infirmary. When the hospital became aware that the birth mother was a surrogate, staff asked the parties to enter into a surrogacy agreement and provide the hospital with a copy. The parties agreed and an agreement was drawn up1.

The child (CP), a boy, was born on 1 March 2010 and the hospital, reassured by the surrogacy agreement, agreed to him being handed over to the commissioning parents, JP and LP. The surrogate mother registered CP’s birth, with LP shown on the birth certificate as the father and herself as the mother. Sadly, the relationship between JP and LP broke down just a few months after CP’s birth. JP left the matrimonial home with CP and applied to the County Court for a residence order in her favour.

The County Court in fact made a shared residence order, in favour of JP and LP. At that hearing, the commissioning parents also undertook to regularise the legal status as between themselves, SP and the child, by issuing an application for a parental order pursuant to s54 Human Fertilisation and Embryology Act 2008. LP duly signed the application and passed it to the mother to sign and lodge at court. JP signed the application but failed to lodge it with the court as agreed. The application was not finally issued until CP was 7 ½ months old. The application was, accordingly, out of time, as the 2008 Act decrees that an application for a parental order must be made within 6 months from the date of the child’s birth. Failure of the parents subsequently to co-operate with the court process led to the application being dismissed.

Decree Absolute was pronounced on 4 November 2011. When JP later made an application for sole residence of CP, the matter was transferred to the High Court, with both CP and SP being joined as parties. The court was asked to address the issues that arose in circumstances where there was no parental order and also to consider how this impacted upon the exercise of parental responsibility (PR) by the three adults.

Surrogacy

There are two types of surrogacy, “full” and “partial”. Full surrogacy involves the commissioning couple’s gametes (or donated gametes) being fertilised in vitro and the resulting embryo being implanted in the surrogate. Because this process involves IVF, it must necessarily take place in a licensed clinic, whereupon it falls within the regulatory ambit of the Human Fertilisation and Embryology Authority and the Human Fertilisation and Embryology Acts 1990 and 2008. The Acts make provision for information and counselling to be offered to the parties (not least about legal parenthood and identity issues) and for consideration of the welfare of any child(ren) born as a result of treatment. By contrast, ‘partial’ surrogacy utilises the surrogate’s own eggs and involves her artificial insemination with the commissioning father’s sperm. This can obviously, as in this case, be undertaken at home, in an informal and unregulated manner and without any of the safeguards provided by a licensed clinic. Parenthood in surrogacy arrangements

It is trite law that the woman who gives birth to the child (ie: the surrogate in these cases) is its legal mother and has automatic PR for the child. This is so even where the child is conceived from the egg of the commissioning mother or a donor. Parenthood and PR for the child accordingly need, ideally, to be reassigned to the commissioning parents and the surrogate mother’s rights extinguished.

In this case, SP was not married. Accordingly LP, the genetic father of CP, was also the legal father with automatic PR for the child.

JP, the intended mother, had no formal status at all in relation to CP. In the absence of the residence order, or some other appropriate legal intervention such as a court order or a PR agreement, she would not have had PR and could not therefore have taken any of the crucial decisions relating to CP’s medical treatment, religious upbringing, education and so forth – the routine decisions parents make on a daily basis in relation to their children. Her position vis-à-vis the child was thus highly insecure because the surrogate mother remained CP’s legal mother and retained PR for him.

Parental orders

The Parental Orders (Human Fertilisation and Embryology) Regulations 1994 created parental orders, a consensual means for the relatively speedy transfer of legal parenthood in surrogacy cases (which sits with the birth mother and, if she is married or in a civil partnership, her husband or partner) to a commissioning couple, where the child has been conceived using the gametes of at least one of the couple. Section 54 of the Human Fertilisation and Embryology Act 2008 expanded the categories of couples who could obtain a parental order, to include married couples, civil partners, unmarried heterosexual couples and same sex couples not in civil partnership. Such orders are still not available to single individuals, however, for whom adoption remains the only route to legal parenthood.

This case: the options

By the time the application for a parental order was finally lodged at court in this case, there were two potential problems: firstly, the time limit of 6 months for making the application had passed and, secondly, it is unclear whether the requirement that the child should have its home with the applicants, at the time of making the application and the order, would have been satisfied, given that there was a shared residence order in force in favour of JP and LP. Because this specific issue was not argued before the court, Mrs Justice King felt it improper to speculate.

On the time issue alone, though, the court held that a parental order was simply not an option: there is no provision within the 2008 Act for a discretionary extension to the statutory time limits and no one had sought to argue that   the court could or should, by means of its inherent jurisdiction or otherwise, seek to get around the mandatory provisions of the statute.

Equally, adoption did not offer any sort of solution because, if JP were to adopt CP alone, LP’s PR would be extinguished pursuant to ss46 and 67 Adoption and Children Act 2002. JP and LP could not, however, adopt together because they were no longer living as partners in an enduring family relationship, as required by the 2002 Act.

A Special Guardianship Order was not an option because although, if made in JP’s favour, it would (probably appropriately) enable her to exercise her newly granted PR to the exclusion of the surrogate mother SP, it would also enable her to exercise it (potentially inappropriately) to the exclusion of LP, the child’s legal and biological father.

Although JP had been granted a shared residence order, which conferred PR upon her for the child, this was not a watertight solution to the problem and gave her no security in terms of status, as it did not confer legal motherhood and, in the event that she ceased to have a residence order, she would lose PR unless it could be secured by some other means. Despite the existence of the residence order, SP – the surrogate mother – remained CP’s legal mother with PR for him.

The outcome

Despite years of acrimony between JP and LP, the parties managed to set their grievances aside to come to a sensible and practical shared care arrangement which, in the exceptional circumstances, the court endorsed. CP was made a ward of court (wardship being, the court decided, the most appropriate way in which to manage the overall use of PR as between LP, SP and JP), a shared residence order between JP and LP was made, all issues of PR were delegated to JP and LP jointly, and the surrogate mother was prohibited from exercising any PR for CP without the court’s permission.

A judicial warning

Such were the potential ramifications of this DIY arrangement between the parties – and we know from experience that trusts are finding such tripartite arrangements commonplace in their dealings with pregnant women – that it is worth reproducing the judge’s final homily in full:

This case however highlights the real dangers which can arise as a consequence of private ‘partial’ surrogacy arrangements where assistance is not sought at a regulated fertility clinic (or indeed full surrogacy arrangements where the child is born abroad). At a licensed clinic consideration will be given to the welfare of a child born as a result of the surrogacy arrangement and counselling services will be provided to the parties which will include the provision of information about the likely repercussions of a surrogacy arrangement and the importance of obtaining a parental order.

It is to be hoped that a multi agency surrogacy protocol will soon be in place in every Health Authority in England and Wales, drafted in conjunction with their local fertility units and local authorities. Such protocols would go some way to ensuring that, in informal surrogacy arrangements, the welfare condition is met and the adults will be given important information and advice.

Outside the regulated clinics advice is hard to find; there are few firms of solicitors specialising, or even passingly knowledgeable, in the field, perhaps in part because the prohibition contained in s2 Surrogacy

Arrangements Act 1985 prohibiting the negotiating of surrogacy agreements on a commercial basis means that firms are not providing a ‘surrogacy service’. Surrogacy is however becoming increasingly common and the number of applications for parental orders around the country is increasing rapidly, particularly since the amendments to the HFEA 2008 now allow same sex and co-habiting opposite-sex couples (but not single people) to apply for parental orders. (s54(2)).’

Key points to remember

The case provides a salutary warning to parents, trusts and lawyers alike, negotiating their first steps along the potentially fraught path to surrogacy.

Our top tips, primarily for trusts, are as follows:

  • If you are providing maternity care to the surrogate mother, bear in mind that she is your patient and the commissioning parents have no legal right to dictate models of care or birth plans.
  • The foetus has no independent rights prior to birth and choices made by the surrogate mother about proceeding with the pregnancy should be respected, regardless of the views of the commissioning parents.
  • If problems arise during the birth and the surrogate loses capacity, it is her next of kin that you should approach to assist you in making a best interests decision, if time permits, not the commissioning parents.
  • Commissioning parents should be aware that parenthood will always need to be transferred from the surrogate mother by means of a parental order, even where the new HFEA consent forms are in use.

The thaw in contemporary attitudes to surrogacy means that such ‘informal’ arrangements will inevitably become more commonplace as time goes on. Although the judge in this case was keen to encourage trusts to put a protocol in place to govern multi-agency practice in relation to surrogate births, it is difficult to see how this would work whilst surrogacy agreements remain unenforceable and largely unregulated. A trust that treats the surrogate mother as if she were any other maternity case but turns a blind eye to the fact that the resulting child will be handed over to the commissioning parents somewhere off trust premises is a support player in an almost entirely ungoverned practice. Where a child’s welfare is at stake, this cannot be a satisfactory situation. As surrogacy becomes more commonplace, surely we have reached the point where the activity needs to be entirely formalised with concomitant regulation, to secure the dignity of the parties and the wellbeing of the child.