Surrogacy – Child Arrangement Orders

This article summarises the recent landmark decision in Re Z (surrogacy agreements) (Child Arrangements Orders) [2016] EWFC 34 whereby the Court awarded full care of the child to the surrogate Mother.

This case began as a private surrogacy and serves to illustrate the unpredictable nature of such unregulated surrogacy arrangements, reiterating the need for transparency that has emerged in recent case law. Throughout the judgment Ms Justice Russell was critical of A and B’s conduct towards both X and the previous surrogate, V. In particular, criticism was made of the speed in which the surrogacy agreements were reached and the little information known about each other and their expectations.

In addition, the case provides useful consideration of the application of the welfare checklist by the Family Court in such arrangements.

Factual background – Private Surrogacy arrangement

The applicants, A and B, are a same sex couple who are parents to twins born in June 2013 from a previous surrogacy arrangement with a surrogate ‘V’. The twins are not subjects of these proceedings but were the subjects of parental orders made in 2014.

The parties met through a surrogacy networking site on Facebook administered by W and entered into an agreement whereby the respondent, X, would act as surrogate. The agreement was signed at a fast food outlet near a railway station after a brief meeting lasting less than two hours. It was agreed that A and B would pay X the total sum of £9,000 to be paid at a rate of £500 per month following confirmation of the pregnancy. At the time of this agreement the relationship between A and B and V had completely broken down to the point that there was no contact between them.

Conception took place at a clinic in Cyprus by way of frozen embryo transplant. In November 2014 it was confirmed that X was carrying twins. However by this stage X had changed her mind and no longer wanted to continue with the agreement and had contemplated a termination which was discouraged by W. In December 2014, X miscarried one foetus and at this point she informed A and B that she had miscarried both, encouraged by W.

In May 2015, A and B were informed by W that X was still pregnant and that the baby was due to be born by way of Caesarean section in July 2015. The applicants subsequently instructed solicitors but agreement could not be reached between the parties and proceedings were instigated by the applicants without notice at the end of June 2015 for a declaration of parentage, a child arrangements order for the child to live with the applicants, parental responsibility, prohibited steps order and a specific issue order in respect of the child’s name. Z was born on the day of the without notice hearing. The hearing was unsurprisingly adjourned to an on notice hearing in July 2015 at which the Family Court ordered that Z should remain living with X in the interim period with agreement being reached as to when Z should spend time with A and B.

The Proceedings

The proceedings became somewhat protracted in that during the course of investigations by Z’s Guardian it transpired that X may have learning difficulties, further, Z’s head circumference increased unusually and there were concerns that he may be showing signs of developmental delay. Following the instruction of a clinical psychologist it was concluded that X had severe learning difficulties which ‘manifests itself in her language related skills’. No firm diagnosis was made in relation to Z but it was felt that there was a possibility of a diagnosis of benign subdural hygromas or he may be developing external hydrocephalus. The matter was finally heard in April 2016.

Legal Framework

The Court concluded that X did not freely, with the full understanding of what was involved, agree to the making of a parental order in respect of Z and therefore s.56 HFEA did not apply. The matter was therefore decided on the basis of Z’s welfare as to where and with whom Z should live. Ms Justice Russell referred to the approach of Lord Hope in Re B (A Child)  [2009] UKSC 5 [2010] 1 FLR 551: ‘All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child’s interests. That is the paramount consideration. It is only a contributor to the child’s welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim.’

Judgment and Welfare Analysis

The Court considered that Z’s physical needs could be met by either A and B or X. Ms Justice Russell accepted that the applicant’s feelings towards X would prevent them from promoting and supporting a relationship between Z and X. In particular, it was noted that A continued to struggle to accept X as Z’s mother. This was in contrast to X who, it was observed had moved on showing open acceptance of the situation. Z’s primary attachment was with X.

The genetic tie was noted to be a relevant factual and legal factor to be balanced against the other factors. The paramount consideration was Z’s welfare, any separation from X would impact upon Z to his detriment and such a move could not be justified by the genetic relationship with his siblings.

The Court concluded, in line with the guardian’s recommendation, that Z should remain living with X as:

1)     X was better placed to meet Z’s emotional needs;

2)     X was more likely to be able to treat  A and B in an ‘open and generous’ way enabling Z to develop a good relationship with A and B and develop a wider and more positive sense of his own identity.

Further, the Court ordered, again in line with the guardian’s recommendation, that until Z is 24 -30 months old he should spend one weekend out of every eight weeks with A and B visiting on  a Saturday and Sunday with no overnight to alternate between where the parties lived.

Julie-Ann Elliott is a member of Park Square Barristers family team. She regularly acts for local authorities, parents and children in complex care and private law proceedings.