The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
| Re: X & Y
Mr Michael Sherwin, Solicitor (instructed by, McMillan Williams Solicitors) for the children
Hearing dates: 18th July, 2008, 19th August, 2008 and 5th November 2008
Crown Copyright ©
The Hon. Mr. Justice Hedley :
"(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child…..
(3) Subsection (1) above applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs."
It is clear (and accepted on all sides) that the effect of the provision is that in English law the Ukrainian woman (although biologically unrelated to the twins) is for all purposes the sole legal mother of these children.
The position as to who is the legal father of these children is controversial between the applicants on the one hand and the children's guardian (appointed for the purposes of the Section 30 application) on the other. It is, however, agreed that the position is to be determined in accordance with Section 28 of the 1990 Act. The material provisions are these:
"(2) If –a) At the time of the placing in her of the embryo or the sperm and eggs…., the woman was party to a marriage, andb) ….. then, subject to subsection 5 below, the other party to the marriage shall be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs…..
(4) Where a person is treated as the father of the child by virtue of subsection (2)…..above, no other person is to be treated as the father of the child."
It is common ground that the Ukrainian woman's husband acquiesced to the surrogacy and, if subsection (2) applies to him, he is in English law the sole father (although again biologically unrelated) of these children. It is further common ground that the male applicant is the biological father of these children and, had the Ukrainian woman been unmarried, that he would be entitled to be treated as the father of them. The guardian contends that subsections (2) and (4) apply, the applicants contend that they do not because the court should not apply the subsections extra-territorially. The provisions of Sections 27 and 28 are further underpinned by those of Section 29(1) and (2), the effect of which is to apply the statutory parenthood for all purposes, and, where parenthood is not given, to apply that also for all purposes.
In the end, having satisfied the immigration authorities by DNA tests (which had to be processed in this country, thus causing further delay) that the male applicant was the biological father of both children, the children were given discretionary leave to enter "outside the rules" to afford the applicants the opportunity to regularise their status under English law, hence the application for the parental order. It requires little imagination to appreciate, even for a professional couple as resourceful and competent as these applicants, the stress and anxiety involved let alone the expense of prolonged accommodation in the Ukraine (at comparable cost to England), the obtaining of expert legal advice, both English and Ukrainian, the cost of testing and immigration negotiations and so forth – all this in the context of first-time parenting. It was as well in this case that there was no pressing need for medical treatment. It may be worth adding that the grant of a parental order does not of itself confer citizenship although the evidence suggests that it is very unlikely to be denied if sought.
"The Court must be satisfied that both the father of the child (including a person who is the father by virtue of Section 28 of this Act), where he is not the husband, and the woman who carried the child have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order."
It should be noticed that, unlike the adoption legislation, the court has no power to dispense with a required consent however unreasonable the withholding of that consent may be or however much the welfare of the child is prejudiced by such refusal; even if they bear no legal responsibility for the child under their own domestic law, the persons whose consent is required truly have an absolute veto. Again no specific reason for that can be ascertained. That is of some importance to the applicant's argument on this point. The Ukrainian surrogate mother has given the requisite consent and that has been proved before me although there is no prescribed form of consent nor does it have to be witnessed by the parental order reporter who in this case is also the guardian. As it happens the same is true of her husband though I am urged to find that his consent is not required.
"(8) This section applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of…... the embryo…...."
What is submitted, however, is that Section 28(8) does not extend to the surrogate mother's husband. First, it is said (correctly in my view) that the male applicant is indeed the father of the children under Ukrainian law. Then it is submitted that whilst a statute that is worded extra-territorially will apply abroad to British subjects, that does not necessarily apply to those of foreign domicile. Reference is made to PUGH -v- PUGH  p.482. The headnote reads as follows -
"The effect of the Age of Marriage Act 1929 is extra-territorial and the Act affects the capacity to contract marriages in all persons domiciled in this country wherever the marriage may be celebrated. Where, therefore, an Englishman domiciled in England married in Austria a girl of 15 years of Hungarian birth:- Held, that the marriage was void notwithstanding that it would have been valid by either Hungarian or Austrian law."
It is important to see how Pearce J (as he then was) formulated his conclusion (p.494):
In view of these authorities it is clear that this marriage was not valid since by the law of the husband's domicile, it was a marriage into which he could not lawfully enter"
"The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by the husband or wife for or in consideration of –
(a) the making of the order,(b) any agreement required by subsection (5) above,(c) the handing over of the child to the husband and the wife, or(d) The making of any arrangements with a view to the making of the order,
Unless authorised by the court."
The evidence of the applicants, which I accept, was that they agreed to pay €235 per month to the surrogate mother during pregnancy and a lump sum of €25,000 on the live birth of the twins; 80% of that sum was payable on the surrogate mother's provision of a notarised consent to facilitate the applicants being registered on the Ukrainian birth certificate, the balance on the signing of written consent to the parental order application at six weeks. These are the figures actually paid, the payments being lawful under domestic Ukrainian law. They represented at the time rather lower sterling equivalents than they did at the time they were actually paid
(i) was the sum paid disproportionate to reasonable expenses?
(ii) were the applicants acting in good faith and without 'moral taint' in their dealings with the surrogate mother?
(iii) were the applicants party to any attempt to defraud the authorities?
On the facts of this case I have no doubt that the applicants were acting in good faith and that no advantage was taken (or sought to be taken) of the surrogate mother who was herself a woman of mature discretion. Moreover there was never any suggestion of any attempt to defraud the authorities; quite the opposite: I am satisfied that these applicants sought at all times to comply with the requirements of English and Ukrainian law as they believed them to be.