#14815 - International Procreation And Parenthood - Children, Families & the State

Ukrainian surrogate mother given monthly payments of 235 pounds and a lump sum of 25,000 pounds for a live birth

Where a court is faced with such a scenario, 3 questions should be asked:

BIC to be primary consideration:

‘I find this process of authorisation most uncomfortable. What the court is required to do is to balance two competing and potentially irreconcilably conflicting concepts. P is clearly entitled to legislate against commercial surrogacy and is clearly entitled to expect that the courts should implement that policy consideration. Yet it is also recognized that as the full rigour of that policy consideration will bear on one wholly unequipped to comprehend it let alone deal with its consequences (ie. the child) that rigour must be mitigated by the application of a consideration of that child’s welfare. That approach is both humane and intellectually coherent. The difficulty is that it is almost impossible to imagine a set of circ’s in which by the time the case comes to court, the welfare of any child (particularly a foreign child) would not be gravely compromised (at the very least) by a refusal to make an order’

This case is important bc it shows the way in which the courts are having to grapple with conflicting public policy vs. interests of the child; court stretching the application of s 54 factors in order to authorize parental orders being made, despite being contrary to domestic legislation

Given the weight placed on the child’s BIC, arguably the court’s ability to refuse the making of a parental order even in the face of evidence going against s 54 factors is undermined

*Note: this case was heard prior to the 2010 legislative changes which elevated the welfare of the child to be the paramount consideration and therefore public policy and welfare carried equal weight at the time

Couple commissioned a surrogate to bear child but husband died in between the time of the lodging the application of the parental order and the time of the hearing before the court

s 54(4)(a) required that there be two commissioning parents at time of application and hearing for parenting order and there was also doubt as to the genetic link between mother and child (s 54(1))

Requirements of s 54 must be interpreted in a way that is consistent with the best interests of the child

There is no other combination of orders that would recognise the child’s status with the applicant and her deceased husband equally

The child’s home from the time of birth until the husband’s death had been with the couple and apart from his death he would have remained in the care of both parents

Parental orders have implications for ECHR A8: not making a parental order would be an interference with the family life of the child in that the factual relationship between child and parents would not be recognized by law

There is an obligation on the court to guarantee rights are practical and effective (cf. theoretical/illusory)

Reliance also on A7 of UN Convention on the Rights of the Child, arguing this Convention requires the state to protect the child’s right to identity, including the legal recognition of a relp between child and parents

A7 nationality point and being brought up by the parents A8

Court is bound to take a purposive construction of s 54(4)

This case again shows the way in which the court’s have been willing to stretch the factors in s 54 and to allow parenting orders to be granted

Interesting use of ECHR and UNCRC in this case in interpreting s 54 requirements and allowing for the parental order to be made

Purposive reading reading down natural meaning of the words here

Court tries to contact the surrogate mother at the time of the hearing to gain her consent to the commissioning parent’s application for a parenting order but the surrogate mother cannot be found

Her consent had been given less than six weeks after the birth (ie. contrary to s 54(7)

Although the prior consent was not valid for the purposes of s 54(7), judge decided he was entitled to take into account evidence that consent had been given at an earlier time

Cautioned that importance to be attached to such consent must be limited and said he gave little weight to it

This case shows the difficulty in applying the s 54 factors; particularly in cases where the mother cannot be located question whether or not consent can adequately be given if the mother cannot be located and whether or not previous consent should be taken into account where there is no consent in the aftermath of the birth?

Child born under surrogacy agreement in India in Dec 2011 and commissioning parents were living in India at the time and cared for the child since birth

In July 2013, they returned to the UK and separated and then the father sought a residence order under the Children Act 1989 the issue was that the parents had never made an application for a parental order which meant the surrogate parents were the legal parents and neither the commissioning mother or father had parental responsibility for the child

This was in breach of s 54(3) which states that a parental order application must be made within 6 months of the child’s birth but commissioning parents argued they were not aware of the requirements and were ignorant of the need to obtain a parental order and were ignorant of the time limit

*Note: Hedley J in Re X and Y had addressed the time-limit in s 54(3) and determined that it was non-extendable and King J in Re JP v LP had held a parental order could not be granted in respect of a child of 33 weeks

The precedent that had been set with respect to the time limit was incorrect the court not only had a power to extend the time limit...