As part of National Surrogacy Week 2018, Gemma Vines explores the impact of a recent case and why changes are needed to the law surrounding surrogacy in the UK.
The recent case of AB v CD  EWHC 1590, where the Court was again prevented from granting the biological parents of twin children a Parental Order and therefore recognising them as the legal parents of the children, again highlights the urgent need for reform in the area of surrogacy Law.
In this case, the Court was effectively prevented from granting a Parental Order to the biological mother and father of twin children because they had divorced by the time that the applications were made. Astonishingly in 2018, an application for a Parental Order cannot be made by a single person. Under the current law, it has to be made by two persons either married or in a civil partnership or who are living as partners in an “enduring family relationship.”
The current legislation was passed at a time when surrogacy was viewed in a more critical light and when there was mounting concern about the possible financial and commercial exploitation of surrogacy arrangements. The legislation was largely reactive to these concerns and was as drafted with the focus on eliminating commercial surrogacy, as opposed to removing uncertainty over parenthood and ensuring that the welfare and interests of the child involved was of prime concern.
There can be no doubt that opinions regarding surrogacy have moved on dramatically since the Human Fertilisation and Embryology Act came into force in 2008. More and more, it is becoming an option for people who are unable to conceive children themselves. Whilst there are no official numbers regarding the children born of surrogacy arrangements, it is clear that the numbers have increased significantly in the last 10 years and no doubt, will continue to rise. What is becoming clear however, is that the law as it currently stands is now out of step with social attitudes and with modern day surrogacy as it is on the ground, and is failing children in a number of respects.
Increasingly, case law is highlighting the difficulties faced by Judges in granting Parental Order, which formally recognises the biological parents as the legal parents of children. Whilst Parental Orders are nearly always deemed to be in a child’s best interests, routinely Judges are being forced to interpret the law very widely in order to get around the obstacles that the current legislation presents for parents applying for these orders. In some cases, Judges have no choice at all other than to refuse to grant a Parental Order, as in the recent case of AB V CD.
A further example is the case in which I was involved, namely Re AB (Surrogacy: Consent)  2 LFR 217. In that case, the Court was again prevented from making a Parental Order in favour of the biological parents of twin children, this time because the surrogate simply refused to give her consent to the making of one, as she felt she had been treated unfairly by the biological parents during the pregnancy. This was despite her having readily handed over the children to the parents shortly after their birth, having played no role in their lives and wanting no further contact with them.
Other examples, of where the Court has been prevented from making Parental Orders have been where the application has been made out of time (the legislation stipulates that the application must be made within 6 months of the child being born) or where high payments have been made to the surrogate. Under the legislation, the Court must be satisfied that no money or other benefit over and above reasonable expenses have been paid. This can often cause issues, particularly in international cases where surrogacy arrangements have taken place in jurisdictions where large payments are legal and the norm. In those cases the Court’s hands can often seem tied when balancing the welfare of the child against breaches of the law which may affront public policy when high payments have been made to the surrogate.
The tight criteria for the making of a Parental Order means that Judges are very often faced with parents who are not able to meet one or more of the criteria for granting the Order. In cases where the Court has no option other than to decline to make an Order, the Court is forced instead to construct a set of less appropriate Orders to secure the welfare of the child, for example, a Child Arrangements Order and / or Wardship and an Order restricting the exercise of parental responsibility of the surrogate mother and, where appropriate her husband. The problem is that these Orders fall far short of the transformative effect of a Parental Order and moreover, do not actually make the applicants the legal parents of the children. The only other option is adoption. Whilst this does confer legal status, understandably, biological parents in many cases feel it is inappropriate for them to become in law adoptive parents of their own children in order to gain this status.
In addition to the shortcomings that less appropriate Orders confer, the psychological benefits of a Parental Order on the child involved cannot be overstated. As the President observed in the case of Re X (a Child) (Surrogacy: Time limit)  EWHC 3135:
“‘Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being whether, as an individual or as a member of his family. A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationship with the surrogate and the commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences’.
The frustration felt by Judges in these cases, who are effectively stuck between a rock and a hard place, is palpable. Keehan J in the case of AB v CD commented on the ‘absurdity of the law’ in not recognising the children’s intended legal parentage. He expressed his frustration that “the losers were predominately the children” and that he was prevented “without any obvious good, legal or policy reason from making an order which explicitly recognise them as the legal mother and the legal father of these children”.
What these cases highlight is that a change in the law is urgently required in order to keep pace with social change, the growing demand for surrogacy arrangements and an increasing number of overseas surrogacy arrangements. As it currently stands, The Law Commission of England & Wales and the Scottish Commission has started work on a review of the laws around surrogacy as part of their 13th and 10th programmes (respectively) of reform. The review, which commenced in May 2018, will be a joint three-year project to develop law reform recommendations. Consequently, there is now widespread hopes that a change in the law will follow.
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