A seven month old baby boy and Surrogacy: finances and the inconsistencies between policy and law.

444136053_7bc46343e4_mToday has been an interesting day here at the office. I arrived back from Court at around twelve o’clock and then spent the afternoon working on some of the ongoing cases I am involved in. The areas of work I was able to experience this afternoon were particularly enlightening. I really do love my job, the work I do is great because it allows me to constantly challenge myself and to learn.

Last night as I sat eating my dinner I read the case of Re C [2013] EWHC 2408 (Fam). This case concerned a seven month old baby that was conceived following a surrogacy arrangement entered in to through a surrogacy agency in the United States of America.  The Application was for a parental order under s.54 Human Fertilisation and Embryology Act 2008. In this case there had been a number of payments made over a period of time including $85,000 to the respondents in the case (the surrogate and her husband) a large portion of which was said not to reflect expenses; an agency fee which is allowed within America but a portion of which would have been for profit; and a payment of $28,195 for medical treatment which included $6,000 to the egg donor.

Mrs Justice Theis stated that in regard to ‘the s.54 criteria, I can take the criteria set out in s.54 (1) to (7) relatively quickly as there is little issue about them. Firstly, there needs to be a biological connection between C and one of the applicants and that C was carried by a woman who is not one the applicants as a result of the placing in her of an embryo using the gametes of at least one of the applicants.  The letter from Dr. H confirms A’s genetic connection to C and that C was carried by the first respondent, following the placing in her through the IVF procedure an embryo created using the gametes of A. The second matter is the status of applicants’ relationship.   They have been in a relationship for ten years and were married on 29th August 2005.  The third matter is that the application must be issued within six months of C’s birth.  He was born on [a day in] December 2012 and the application was issued in early March 2013, so within six months. The fourth matter is that C should have been in the care of the applicants at the time the application was made and at the time when the court is considering the order, and that at least one of the applicants is domiciled in this jurisdiction.  The applicants assumed C’s care almost immediately following his birth in the United States, and they returned to their home with him in this jurisdiction on 14th February 2013. He remains in their care in the family home.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568). She went on to state that both the applicants were domiciled in England in that A was born in Yorkshire and his domicile had not changed and that the B, whilst being born in Hong Kong, had lived in England since 1971 and thus her domicile had changed to that of a domicile of choice in England. Further Mrs Justice Theis stated that both the applicants fulfilled the age criteria, being over the age of 18 years.

Following this Mrs Justice Theis dealt with consent. Mrs Justice Theis states that consent was given within the applicable six week time frame; that the notarised document detailing consent in the bundle handed to the court complies with rule 13 of the Family Procedure Rules 2010; and there was also a pre-birth order made in America prior to the original surrogacy agreement. Thus the only fact left to deal with would be that of no money or benefit, other than that required for reasonably incurred expenses, had been made unless authorised by the court under s.54(8) HFEA 2008. Obviously the above figures appear to go against this. However, Mrs Justice Theis dealt with each figure in turn. In relation to the $28,195 for medical treatment minus that for the egg donor, the applicants stated that this was not caught by s.54(8) because should it have been incurred within England it would have equated to a permitted expense, Mrs Justice Theis agreed. In relation to the $6,000 the applicants submitted that this did not fall the ambit of s.54(8) in that the egg donor was not legally the mother of the child under English or American law and if the pregnancy had been unsuccessful s.54(8) would not have been applicable anyway.  Mrs Justice Theis allowed this argument and agreed.

Therefore, Mrs Justice Thesi was left with the $51,200 which fell within the ambit of s.54(8). The court considered the figure in its totality as it was impossible to separate any reasonable agency fees from the amount. The issues to be considered were whether or not the sum paid was disproportionate to reasonable expenses; the applicants had acted in good faith and without moral taint; and if the applicants had been party to any attempt to defraud the authorities. Mrs Justice Theis came to the conclusion, after consideration of the factors that the sums paid were not disproportionate to the reasonable expenses. She states that ‘they did not overbear the will of the surrogate and were not of such a level to be an affront to public policy. They were payments permitted in the jurisdiction in which they were made, and are not too dissimilar to payments made in similar cases.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568)

Finally, Mrs Justice Theis considered the welfare of the child under s.1(4) Adoption and Children Act 2002 (ACA 2002). The Courts paramount consideration here is the long term welfare of the child. The Parental Order Report stated that ‘C is living in a home environment where he is cherished and loved. There are no concerns that he is at risk… and, in my view, it is in his best interest to remain…’ Mrs Justice Theis, after considering the welfare checklist, came to the judgement that ‘C’s lifelong security and stability can only be met by the making of a parental order which will secure his relationship with the applicants long term and that is the order which I am going to make.’ (Full judgement as reported on Family Law Weekly, http://www.familylawweek.co.uk/site.aspx?i=ed115568)

In making her decision Mrs Justice Theis authorised one of the highest amounts ever paid to a surrogate. In coming to her judgement Mrs Justice Theis for the first time bridge the gap and cleared the fog between egg donation and surrogacy law and policy within the UK.

For the full case report please visit: http://www.familylawweek.co.uk/site.aspx?i=ed115568

Photo by Pamela Machado via Flickr under a Creative Commons license

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