Reported Case

The Family Court has confirmed that Parental Orders can be made under s54 of the Human Fertilisation and Embryology Act 2008 (HFEA), where children who are subject to the application are conceived by way of home insemination via private surrogacy arrangement.

Background

The court was concerned with applications for parental orders, brought pursuant to s54 of the HFEA.

Following agreement being reached between the applicants and respondent that the respondent would act as a surrogate, the respondent conceived the subject twins via at-home artificial insemination.

The matter was originally allocated to magistrates, who raised concern that this case may fall outside the scope of the HFEA due to the insemination taking place via private arrangement and not at a licenced clinic. As a result of this, the case was re-allocated to the High Court for determination.

It was submitted on behalf of the applicants that there is nothing within the HEFA 2008 which prevents the court making a parental order under s54 of the act, where insemination leading to the birth of a child via surrogacy has taken place pursuant to a private arrangement (as opposed to a licensed clinic).

In this case, all parties were in agreement that, should the court have jurisdiction to do so, it should make parental orders in favour of the applicants in respect of the children. This was further supported by two parental orders reports prepared in this matter.

Judgement

The court referred to Whittington Hospital NHS Trust v XX [2020] UKSC 14 in which the Supreme Court considered the operation of s54 HFEA and did not suggest there is a requirement for the artificial insemination required under this section to take place in a licenced clinic.

There has been limited judicial discussion on this specific issue. Therefore, also drawn to the Court’s attention in submitting that home insemination under a private arrangement falls within the scope of the Act was surrounding guidance, including:

At-home artificial insemination falls within the scope of The Human Fertilisation and Embryology Act 2008.

• Government Guidance: ‘Straight Surrogacy’ in which self-insemination at home was a recognised first-step on the surrogacy pathway


• NHS guidance to becoming a parent if you are LGBT+ which confirmed donor insemination ‘can be done at home’


• Guidance from the Human Fertilisation and Embryology Authority which (whilst recommending use of a licenced clinic over home insemination using donor sperm) does not suggest insemination at home prevents an application for a parental order under s54 HFEA

Within his Judgement, Mr Justice MacDonald provides a helpful application of the facts of this case to the requirements listed under s54 HFEA. Of note, is that, despite the application being made 27 days out of time (defined in s54(3) HFEA as six months from date of birth), MacDonald J was satisfied that in the circumstances, the significant medical intervention of one of the children was a legitimate explanation for the delay (applying Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349).

The court’s key concern remained the welfare of the children. The court had the benefit of two parental order reports in this case which confirmed that the making of parental orders was in the interest of the children. The court concluded that it was ‘manifestly’ in the children’s interests to grant the Parental Orders and afford the children certainty as to their legal parentage.

Parental orders were granted in favour of the applicants.

Reform to Surrogacy Law

This case comes at a particularly relevant time, with the recent Law Commission report on surrogacy law reform.

Surrogacy law has struggled to keep up with the use of such an arrangement for family building. The report addresses a key issue which, under the proposals, would enable intended parents to be recognised as legal parents from point of birth.

The report proposes a ‘new pathway to legal parenthood’ involving multiple pre-conception checks which would mean that, from birth, the intended parents would be treated as the child’s legal parents, without the need for a parental order (except in situations as described below). As part of this pathway, it is proposed that the surrogate is provided with a period of 6-weeks after the birth of the child to withdraw consent to the agreement. If consent were to be withdrawn in this way under the proposed pathway, the surrogate would not be the legal parent and would have to apply for a Parental Order to gain legal parental status instead of the intended parents.

As part of the pathway, it is recommended that a Regulated Surrogacy Statement is signed by the surrogate, intended parents and the Regulated Surrogacy Organisation in the pre-conception stage.

Parental orders would still be needed where:

• The surrogate under the new pathway withdraws consent prior to the child being born. In this case the intended parents would apply for a parental order and the Court would make a decision about who the legal parents are


• The surrogate under the new pathway withdraws consent in the 6-week period after the birth of the child. In this case the surrogate would apply for a parental order and the Court would make a decision about who the legal parents are


• Where surrogacy teams choose to make arrangements outside of the new pathway


• International surrogacy arrangements

The creation of Regulated Surrogacy Organisations is suggested, whose role would be to support all parties to the surrogacy agreement and oversee the eligibility and screening requirements are met under the new pathway. A Code of Practice for surrogacy is proposed, to guide RSOs
Under the new pathway and in relation to parental order applications, there are recommendations about the types of payment which would be permitted as well as prohibited from the intended parents to the surrogate.

The introduction of a surrogacy register is proposed which records information for all surrogacy agreements to ensure surrogate born people can access information about their origin when they reach a defined age.

The Government now has a year to provide a full response to the recommendations. What is clear is that surrogacy has evolved at a much faster rate than the law governing it. A full reform is required rather than the case by case approach upon which the current law has predominantly developed. Greater protection for surrogates, intended parents and importantly, children, is required which reflects the intention of all those involved and limits the period of legal uncertainty children are currently subject to. It is hoped that the reforms proposed will enable what should be an exciting time for those embarking on this journey to focus on the expansion of their family and experience a smoother process.
Duncan Lewis Solicitors’ Family and Child Care solicitor, Amie Dinan, instructed Brónach Gordon and Nathan Baylis of 4 Brick Court for the Applicants.

Amie Dinan is a solicitor in the Harrow based childcare department at Duncan Lewis Solicitors, where she supports director Ravi Mahey and in a range of family law matters.

Contact Amie via email at AmieD@Duncanlewis.com or via telephone on 020 3114 1271.

The full Judgement can be found at caselaw.nationalarchives.gov.uk/ewfc/2023/39

The Law Commission report can be found here: s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/2.-Surrogacy-full-report.pdf

 

Find full details of this case on Bailii’s website here.