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John Bolch on the need for advice on surrogacy and artificial insemination

Two quite different cases reported last week demonstrate the legal difficulties that can arise when couples are unable to have children together.

The first case involved a foreign surrogacy arrangement, and was the latest in a long line of cautionary tales regarding such arrangements. Re WT (A Child) concerned a couple who were clearly desperate to have a child, but had difficulty in conceiving. They had undergone 11 rounds of IVF treatment over the course of four years in India. All of them were unsuccessful, although on four occasions a pregnancy had resulted but led to a miscarriage. They then considered adoption, but were informed that there were likely to be considerable delays in them being assessed, due to their history of undertaking fertility treatment and miscarriages.

They couldn’t wait that long and decided to embark upon a surrogacy arrangement. They engaged a clinic in India and paid a total of $28,000 for the arrangement. In October 2012 child was born to the surrogate mother. Once he was discharged from hospital he lived with the couple in hotel accommodation, whilst the documentation was sorted out to allow him to come to England. A month later he was brought to England and has lived with the couple ever since.

The couple then applied to the English court for a parental order in their favour, pursuant to section 54 of the Human Fertilisation and Embryology Act 2008. The primary problem for the court was that, under that section, it had to be satisfied that the surrogate mother had freely, and with full understanding of what is involved, agreed unconditionally to the making of the order. However, the clinic had not allowed the couple to meet her, and had provided very little information regarding her. All of the documentation signed by her was in English, including a form giving consent to the parental order, but it was not clear whether she understood English or, if not, whether the documents had been interpreted for her.

All of this could have proved fatal for the application. Thankfully, however, after ‘herculean efforts’ by the couple and their legal team the surrogate mother was traced and she confirmed that she understood and agreed to the making of the order. The order was duly made by Mrs Justice Theis on the 4th of March last. At the end of her judgment she highlighted the areas that cause most difficulty in these cases, for the benefit of anyone considering entering into a foreign surrogacy arrangement.

The other case did not end so happily, at least for the applicant. L v C  involved a same-sex couple, Ms L and Ms C. They decided to have a baby together and Ms C found a sperm donor via the internet. She conceived and a child was born in October last year.

Initially the child lived with Ms C and Ms L, and they shared her care. However, their relationship broke down and in January Ms C took the child to Ireland, her home country. Ms L applied to the English court for permission to apply for residence and contact orders (she also sought declarations relating to her human rights, but I shall not deal with those here).

The case went before Mr Justice Jackson on the 2nd of April. The first question he considered was whether the court had jurisdiction to entertain Ms L’s application. He found that it did not. Ms C was legally entitled to take the child to Ireland, and by the time Ms L made her application the child was habitually resident there. Accordingly, the Irish court had jurisdiction and the English court did not. The court could not therefore grant permission allowing Ms L to apply for residence and contact orders.

The moral of these two cases is clear: before you embark upon a surrogacy or artificial insemination arrangement, seek proper advice, including specialist advice regarding the legal implications.

Photo by Steve and Sara Emry via Flickr under a Creative Commons licence

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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