Family Bulletin - Spring/Summer 2017
The news has been filled recently with an ongoing series of calls by surrogates, commissioning parents, lawyers, and other fertility professionals for significant reform of the current regime of surrogacy and fertility law in this country, which is at best outdated and at worst entirely unfit for purpose in a society where family structures are becoming increasingly complex.
At risk of being incredibly, mind-numbingly dull, we will try to clarify the most important issues surrounding this area of law. Deep breaths and here we go...
When a surrogate baby is born, their legal mother is always the woman who gave birth to them and her name goes on the birth certificate and if she is married at the time, or in a civil partnership, her spouse or civil partner must be named on the birth certificate. However this rule does not apply to unmarried/un-civil-partnered mothers. Their partner does not have to be listed on the birth certificate (although not everyone knows this and so sometimes they are listed there in error), so a biologically related commissioning father can usually be listed on the birth certificate. The commissioning mother (or biologically unrelated second parent in situations involving same-sex couples), has absolutely no automatic legal relationship whatsoever with the baby.
In practice, what usually happens after birth is that the baby is handed over to the commissioning parents to take back to their home to begin the process of caring for and raising their new-born child. This happens in spite of the fact that usually both of the commissioning parents have no legal relationship to their baby. In order to obtain such a relationship, they have to apply to the court (within six months of birth) for a parental order to remedy this, so that they can make various decisions about their child for the rest of its life.
A parental order is a unique thing in family law. It changes the child's legal status, like an adoption order does, but in a more comprehensive way. Rather than changing its status from that day onwards, it effectively retrospectively changes the entire legal status of the child, from birth.
The common suggestion is that obtaining a parental order amounts to rubber stamping; it is unfortunately not so simple. It is a complex, usually lengthy, and often costly exercise. The court does not simply accept that the commissioning parents are biologically related to the baby and hand them a parental order; they have to prove that they meet various conditions as laid out in the Human Fertilisation and Embryology Act 2008. These include conditions such as the applicants being in an enduring family relationship (in relation to couples who are not married or civil partnered) and, usually the most importantly, that no money or other benefit has been given or received by either of the applicants in relation to the baby.
COTs and Surrogacy UK do advocate altruistic, rather than paid for, surrogacy. But they do not do so in order to make the parental order application process more simple; they do so because commercial surrogacy is illegal in this country. In England and Wales it is an offence under the Surrogacy Arrangements Act 1985 punishable by up to three months in prison to negotiate surrogacy arrangements on a commercial basis (although this offence does not apply to surrogate or commissioning parents). Although this might seem draconian now, given scientific advances and an increasingly relaxed public attitude towards alternative methods of creating families, if you take into account the furore surrounding Ms Cotton's case in the 1980s, this decision by the government at the time makes sense.
The restriction on payments by commissioning parents is, typically, the highest hurdle to cross in parental order proceedings. With dwindling numbers of women prepared to be altruistic surrogates in this country and with commercial surrogacy being legal in certain foreign jurisdictions and therefore surrogates more readily available, many commissioning parents go through commercial surrogacy processes abroad. They often do not realise, however, that they still need to go through the parental order application process when they get home to England with their bundle of joy even if they are both named on the birth certificate. They then have to ask the court to retrospectively authorise the commercial payments that they made on the basis that they were payments to reimburse the surrogate for "expenses reasonably incurred", which is the only available loophole. When they have paid tens, maybe hundreds, of thousands of pounds, this is a difficult argument to make.
The reality is, however, that judges don't like to leave an infant child in legal limbo, with surrogate parents who have waived all legal relationship with the child, and commissioning parents who have not met the conditions set down in the Human Fertilisation and Embryology Act 2008 necessary to obtain a legal relationship with the child. So, usually, the court will authorise the transactions. However there are some conditions (such as consent from the surrogate mother to the order) that have no wiggle room, leaving the court with its hands tied.
The above is only a brief summary of the primary issues with the legal regime as it currently is; the reality is that it can be a legal minefield. The process desperately needs simplifying and modernising; not least because the process is emotionally complex as it is, without throwing lawyers and courts and CAFCASS officers into the mix. However, unfortunately, it doesn't look as if we're going to get complete reform any time soon despite the fact that we are the first country to permit revolutionary fertility treatments such as "three parent babies". Until then, it is absolutely vital that commissioning parents and surrogate parents take proper advice on the legal aspects and ramifications of the arrangements before taking any real steps.
The clocks went forward recently. It's British Summer Time and the Winter gloom has lifted. But in family law circles, the storm clouds are gathering. The recent Court of Appeal decision in the case of Mr and Mrs Owens gives the impression that the clocks have been turned back a century or two.
Mrs Owens has been denied a divorce from her husband of 39 years on the basis that his behaviour was not deemed sufficiently unreasonable to show that the marriage had irretrievably broken down. In the 21st century where autonomy and freedom of choice are (supposedly) valued as principles upon which a forward-thinking democratic society is built, it seems extraordinary that a wife should be forced to continue in a marriage against her will. Surely a society where women were treated as the property of their husbands is one which we have long since abandoned and yet this decision from the Court of Appeal smacks of a medieval concept of ownership of women.
Mrs Owens will ultimately be able to divorce her husband on the basis of 5 years' separation with consent but she must wait another 3 years to be able to do so. In circumstances where she says the marriage has broken down now and her husband says it has not, their inability to agree on this fundamental issue seems pretty clear evidence that this marriage is not working.
The legislation in England and Wales that governs divorce dates from 1973. It is incredible that modern-day marriage is still at the mercy of such an outdated statute and the situation in which Mrs Owens finds herself highlights the inability of the law to reflect social change. There have long been calls for divorce law to be reformed and to end the antagonistic fault-based regime that currently applies. This decision has served to reaffirm the pressing need for Parliament to step in to address our archaic system and to look to introduce no-fault divorce.
The Howard Kennedy team have had another successful outcome in a long running jurisdiction battle between a former husband (H) and former wife (W) as to whether the English Courts had the right to hear W's Tlata application (to determine the parties beneficial interests) in relation to a jointly owned London property acquired during the marriage. In this pre Brexit era the interpretation and application of the relevant European Regulations (Brussels I) and ECJ decisions in determining the outcome and judgment was paramount and ultimately decided the case in the W's favour.
W's application dated back to May 2014 but it was not until July 2015 that the case was first heard before Mr Justice Bodey in the High Court when it was decided that her application had as its object rights in rem under Article 22 (Brussels 1) over the London house as she was seeking to give effect to her proprietary rights in the house. The husband appealed and the case went before the Court of Appeal in November 2016 some two and half years after W issued her application.
H looked to challenge all but one of Bodey's conclusions but the Appeal judges were concerned most and foremost to his challenge to Bodey's decision that the English Court had jurisdiction under Article 22; namely that exclusive jurisdiction lies with the courts of the member state, regardless of domicile, in proceedings which have as their object rights in rem in immoveable property.
The Court of Appeal Justices agreed with Bodey and found that the principal matter of W's Tlata claim is to achieve a sale of the property enforceable against the whole world (rights in rem) rather than to secure ownership (rights in personam). The Justices' findings were assisted enormously by the recent ECJ decision of Komu which concerned a Spanish property co-owned in different shares by five Finnish residents and which bore striking similarities to the present case and which ultimately decided that where the property was located was instrumental to the determination of a Court's jurisdiction. A pragmatic and logical conclusion.
In Komu when three of the co-owners were unable to reach agreement with the other two owners about realising their interest in the property they brought an action before the Finnish court which made its way up to the appeal courts in Finland and onto the CJEU to where it had been referred by the Finnish Supreme Court for a preliminary ruling on the question whether such an action was within Article 22 . The Finnish claim was categorised by the CJEU as an action "between co-owners of immoveable property in Spain concerning the termination, by way of sale, of the co-ownership in undivided shares in that property" i.e. very similar to the W's claim as a co-owner to sell jointly owned property under the application of Tlata.
In the Komu case the CJEU found that the Spanish Courts had jurisdiction to deal with the dispute over the Spanish property reiterating their former ECJ ruling in the Reichert case, why courts, where the property is situated, are best placed to deal with these matters; to ascertain the facts satisfactorily and to apply the "rules and practices of the state in which the property is situated"; and that while Article 22 is not to be given an interpretation broader than required it does encompass those actions concerning rights in rem in immoveable property "which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holder of those rights with protection for the powers which attach to their interest".
While H's legal team did come up with some very creative arguments relying on the differences which arise from the peculiarity of the English system of co-ownership in light of the Komu decision and the Justices' direction that it is the European Authorities, not the domestic ones, which ultimately govern the interpretation of Article 22, he faced an obstacle which was pretty hard to overcome.
The Tlata application now proceeds in the English county courts and the matter should eventually be determined this year.