#16944 - International Procreation And Surrogacy - Children, Families & the State

Note: Surrogacy as a test case for considering theories on parenthood and parental responsibility/rights

ASSUME: For surrogacy to take place, must be genetic connection to at least one of the intended parents

Diversity of domestic legal systems:

• (a) Surrogacy friendly (commercial surrogacy permitted, either regulated or unregulated and operating without prohibition)

• (b) Neutral (UK — tolerate some forms, but prohibit others)

• (c) Anti-surrogacy (Italy and France) (prohibit surrogacy entirely)

• Problem: Easy of movement between countries — what do neutral or prohibitive countries do when citizens go abroad, enter into arrangement that is prohibited or considered morally dubious, and then return home with child?

English law prohibits commercial surrogacy: criminal offences to make money from facilitating surrogacy; and surrogacy contracts non-enforceable

• HOWEVER: Tolerates, and to some extent facilitates, altruistic surrogacy

Rules of parenthood as they apply at point of birth — same are normal: surrogate mother is legal mother —second parent will depend on relationships (eg. husband) and genetic connection to child

• Intended parents need to apply for Section 54 Parental Order — requires consent from mother (and any other legal parent)

  • HOWEVER: Restrictions have been undermined significantly — in particular, through two developments:

    • (1) Increasing portion of surrogacy cases where people have gone abroad, entered into arrangement that do not fit within section 54 and court faced within consideration of child’s best interests

    • (2) HFEA Regulations 2010 make child’s welfare paramount, not just in granting the order, but in interpreting section 54

International Regulation, including possibility of international Convention and comparison to Adoption

• Obvious similarities between adoption and surrogacy: inter-country parentage, motivated by same concerns (to curb abuses and address limping status)

• HOWEVER: Differences:

  • (a) General consensus of adoption as a practice that can benefit children versus ethical divergence surrounding surrogacy

  • (b) Adoption more clearly based on child’s needs versus surrogacy more obviously connected by parent’s desire to create family

  • (c) Adoption often dealing with a child that already has relationship/identity in country of birth versus new born baby in the context of surrogacy

• Hague Convention on Inter-Country Adoption based on two key features:

  • (1) Welfare — paramount — both in respect of individual child and way that system itself is set up

  • (2) Subsidiarity — assumption that it is best for the child to be brought up in birth family — if not possible, best to remain in country of their birth — inter-country adoption only where these options are not available

*Fenton-Glynn

2015

The Regulation and Recognition of Surrogacy under English Law

NOTING increase in international surrogacy leading to issue of whether English law should recognise an agreement that takes place legally in one jurisdiction which is contrary to domestic legislation

Argument:

(1) In deciding whether to authorise surrogacy arrangement (grant a parental order), tension between (a) English prohibition on commercial surrogacy (enforcement of statutory provisions) and (b) paramountcy of child’s welfare

(2) While public policy may oppose surrogacy agreements, child’s welfare requires that arrangement be given effect — courts have been forced to “stretch” and “manipulate” the law to fit requirements of child’s welfare, such that “legislation little more than an empty shell”

• Elevation of child’s welfare to “paramount” consideration (HFEA Order 2010) further undermined ability to refuse parental order

  • Re L (2010): Only in the clearest case of abuse of public policy that court will be able to withhold an order if otherwise welfare considerations supports its making

• Only area in which courts have “stood strong” has been requirement that commissioning parents are domiciled in the UK

(3) Permissive approach — such that parental order a “foregone conclusion” — illustrated in relation to:

• (A) Payments beyond reasonable expenses:

  • Re C (2002): While expenses higher than ‘reasonably incurred’, retrospectively authorised payments — in balancing welfare against degree of taint on the transaction, sum was not so disproportionate to render it patently inapt

  • Re X and Y (2008) [See notes below]

  • Despite payments ranging from US$23000 to US$53000, no application for parental order refused on grounds of payments contrary to section 54

  • Courts will not look to objective standards based on profit-making or commercial activity — rather, take subjective view of what is permitted in country in which surrogacy takes place (ie. so long as payments permitted by legal framework in country of surrogacy, courts will not interfere)

  • Questions English courts have set themselves are “smokescreens that do little in effect to restrict commercial surrogacy

• (B) Effect on surrogate mother:

  • Even in circumstances indicating lack of ability to negotiate or absence of legal advice, courts have not used these factors to question the surrogate mother’s freedom of choice

    • ‘Exploitation’ of birth mother (ie. extortionate sums that could not help but overbear her will) unlikely to be sufficient — if birth mother does not want to keep child, then by the time application comes before courts, child’s welfare will almost inevitably dictate that the order be made — “sins of the parents must not bear on the child”

  • Re D and L: original consent given less than six weeks after birth but surrogate mother could not be contacted — while consent not valid for section 54 purposes, Court held that it was entitled to take the fact that consent has been given (at some stage) into account

  • Acknowledge “dilemma” of recognising international surrogacy agreements: courts undertaking ex-post facto examination of situation in which they have no opportunity to talk to surrogate mother, no ability to effectively examine circumstances of the negotiation or agreement and faced with parent-child relationship that is already established in fact

• (C) Extension of time-limits

  • Re X [See notes below]

(4) In effect:

• (a) delegation of responsibility — presumes that home jurisdiction will adequately protect surrogate mothers

• (b) while respecting legal pluralism, undermines rationale behind English law: that no matter the jurisdiction in which the child is born, parenthood should be assigned according to English law

(5) Currently, little opportunity for surrogacy to be policed effectively through controlling recognition and parenthood — in cases of commercial surrogacy undertaken overseas, once case comes before court there is little choice but to grant order

• Does not mean that courts have wrong conclusion — faced with the “impossible task” of (a) achieving a balance between public policy and child welfare and (b) simultaneously being told that there can be no balance due to paramountcy of child’s welfare

  • HOWEVER: Need re-evaluation of the way in which surrogacy is regulated — principled approach that provides certainty and consistency and protects rights of surrogate mothers and children

Mulligan

2018

(1) Noting that surrogacy is deeply divisive in Europe, ECtHR approach has been to accept engagement of Article 8 but allow States wide margin

• (a) Limited consensus among States and (b) morally/ethically sensitive nature of issues

  • HOWEVER: Where restriction touches of individual’s identity, tends towards narrow margin

• In virtually all cases concerning assisted reproduction, assessment of margin of appreciation central to ultimate conclusion

(2) Tensions exist between leading cases:

• Mennesson v France (legal status of surrogate-born children)

  • Raised possibility that States could be compelled to respect and recognise the results of cross-border surrogacy arrangements

    • ECHR as requiring States to vindicate child’s right to legal recognition of genetic father-child relationship

      • Thus: erodes efficacy and integrity of domestic prohibition

• Paradiso v Italy (enforcement of prohibition of surrogacy)

  • Reaffirmation of State discretion to prohibit surrogacy and take robust action to deal with illegal surrogacy arrangement

    • HOWEVER: Lack of genetic link vital to allowing ECtHR to adopt deferential approach

      • Essential to determination of standing — case orientation fundamentally different to Mennesson

(3) Tensions reconciled by appreciating pivotal importance of the right to identity

• Mennesson: finding fundamentally premised on fact that denial of legal recognition interfered with child’s right to identity

  • Typically wide margin of appreciation narrowed because ‘particularly important’ fact of individual’s identity at stake

• Paradiso: did not engage child’s right to identity (no genetic relationship and no standing)

  • In the absence of interference with right to identity, margin of appreciation remained broad

• In effect: While States retain wide discretion in prohibition of surrogacy, discretion radically reduced in relation to legal recognition of (genetic) parent-child relationship (strong implication that States only required to recognise relationship where genetic link exists)

(4) HOWEVER: ECtHR has adopted unduly narrow interpretation of identity

• (a) If identity is so strongly protected, ECtHR should extend protection to identity interests...