Category Archives: Surrogacy

Published in The Times – Tuesday, May 19 2015 By Rosemary Bennett – Social Affairs Correspondent

A senior judge has warned of a surrogacy “ticking time bomb” in the UK, with large numbers of parents failing to obtain legal permission to take care of their new children.

Mrs Justice Theis said that there were up to 2,000 babies born to British or overseas surrogate mothers each year on behalf of couples here, but only “a few hundred” obtain the parental order that they need to ensure that the child is legally theirs.

If a parental order is not obtained the child remains the responsibility of the surrogate mother.

“There are a very limited number of parental orders which come to court each year. My concern is not for the people seeking parental orders but for those who are not making applications. It is a ticking legal time bomb,” she said.

“If no steps are taken to regularise the legal relationship between the intended parents and the child by way of an application to the court, the surrogate remains the child’s legal mother and retains the child’s legal mother and retains parental responsibility.” She said she was also concerned about the psychological impact on children who discovered that their “settled” family situation was in fact legally vulnerable.

She predicted particular problems in the event of the death of one parent, separation and divorce, or when the child’s passport needed to be renewed. In the absence of a parental order, the child would be entitled to a claim on the estate of its surrogate mother, she said.

The number of surrogacy arrangements is rising STEADILY IN Britain, with 95 per cent now being born overseas.

Mrs. Justice Theis, one of three High Court judges who hears applications for surrogacy parental orders. She was speaking at a symposium on international surrogacy organised by the International Association of Matrimonial Lawyers in London.

She recently ruled in the controversial British case of a couple in their 60’s who had twins born twins born to a surrogate in Ukraine. The surrogate mother disappeared during the conflict with Russia and the couple were unable to prove that she was really willing to give up her babies. Mrs. Justice Theis ruled that the couple should keep the babies.

Fiona Kendall, a solicitor at Clarion, a law firm in Leeds, said that agencies should explain the legal steps to their clients. “It would help if fertility clinics made clear this was something that was part of the process,” she said.

Cafcass, The children’s legal service, said that it dealt with only 241 parental order applications last year, a fraction of the children born to surrogates for UK couples. Currently only couples married, civil partners or in long term relationships can have a surrogate child. Mrs Justice Theis said that she would shortly be hearing an application for a parental order from a single woman, a test case for the law.

The affidavit of a surrogacy agreement should contain the following:

1. All factors set out in the Act together with documentary proof where applicable. The affidavit should contain the information on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate for them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement.

2. Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused the reasons for the refusal should be set out;

3. A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner;

4. A medical report regarding the surrogate mother which must include her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement;

5. Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process;

6. All agreements between the surrogate and any intermediary or any other person who is involved in the process;

7. Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency containing the full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

(a) the business of the agency,

(b)  whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy,

(c) what exactly the agency’s involvement was regarding the:
(i) introduction of the surrogate mother,
(ii) how the information regarding the surrogate mother was obtained by the agency and

(d) whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

8. Whether any of the commissioning parents have been charged with or convicted with a violent crime or a crime of a sexual nature

9. A clearance certificate by the police of the commissioning parents.

It is important to note that a court may not confirm a surrogate motherhood agreement unless –

1. The commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
2. The commissioning parent or parents –

(i) Are in terms of this Act competent to enter into the agreement;

(ii) Are in all respects suitable persons to accept the parenthood of the child

that is to be conceived; and

(iii) Understand and accept the legal consequences of the agreement and this

Act and their rights and obligations in terms thereof;

3. The surrogate mother –

(i) Is in terms of this act competent to enter into the agreement;

(ii) Is in all respects a suitable person to act as surrogate mother;

(iii) Understands and accepts the legal consequences of the agreement and

(iv) Is not using surrogacy as a source of income;

(v) Has entered into the agreement for altruistic reasons and nor for

commercial purposes;

(vi) Has a documented history of at least one pregnancy and viable delivery;

and

(vii) Has a living child of her own.

4. The agreement included adequate provisions of the contact, care and upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child;
5. In general, having regard to the personal circumstances and family situations of all the parties concerned, but above all theinterest of the child that is to be born, the agreement should be confirmed”.

 

The contents of this article refer to the case Parte WH and Others (2011) (6) SA 514 (GNP)

The agreement between a surrogate mother and the parents who are requesting this “service” (they are also called the “commissioning parents”) must be confirmed by the High Court, as it is a contract of a special kind, even “unique” if you think about the subject matter. When the surrogacy agreement is concluded, it should be remembered that the consequences which may follow could have far-reaching, and sometimes unintended, consequences.

What is often at stake is not only the physical well-being of the surrogate mother and the child to be born, but also the psychological consequences which may follow when the child is born and is to be handed over by the surrogate mother to the commissioning parents.

The High Court has a vital role to play in the confirmation of the agreement. On the one hand, it is directed to advance the spirit and the objectives of the Children’s Act, without creating or placing additional obstacles in the path of those applying to validate the agreement. On the other hand, however, the Court is the “upper guardian” of all minor children, so it cannot simply be a rubber stamp validating the private arrangements between contracting parties.

The Court’s role, therefore, must ensure that both the formal and the substantive (or practical) requirements of the Act are complied with. Invariably, applications of the kind contemplated by the Act are brought on an ex parte* basis and so the Court is invariably dependent upon the information placed before it by the Applicants. The utmost good faith is therefore expected and required of both the surrogate mother and the commissioning parents.

In satisfying itself that the absolute requirements of the Act have been met, the Court must be given sufficient information to support any of the conclusions that the applicants contend for. For example, where an applicant seeks to draw certain conclusions with regard to financial or emotional matters, or even general suitability as a parent, there should be facts to support such conclusions which a Court can interrogate. What this means, ultimately, is that the Court must be satisfied that the conclusions arrived at, are supported by facts. Accordingly vague and generic allegations in this regard that fall short of supporting a conclusion, may well render an application defective.

It would also follow, where such an application is brought on the basis of urgency, the proper grounds for urgency should be clearly set out in the papers as contemplated in Rule 6 (12) (b) of the Uniform Rules of Court.

When the High Court hears a surrogacy application and performs its judicial discretion, it may request any additional information from the parties (or any other institution), to assist it in the determination of the application.

The affidavit accompanying the application should contain the following:

1. All factors as set out in the Act, together with documentary proof where applicable.
2. Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused, the reasons for the refusal should be set out.
3. A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner.
4. A medical report regarding the surrogate mother.
5. Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process.
6. All agreements between the surrogate and any intermediary, or any other person who is involved in the process.
7. Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency.
8. Whether any of the commissioning parents have been charged with, or convicted of a violent crime or crime of a sexual nature.

In respect of the enrolment or registration of the matter with the Court, the guidelines noted below should be followed, in order to protect the identities of the parties:

1. Any party who seeks to bring an application will follow normal procedures for the matter to be issued by the Registrar.
2. The court file must thereafter be brought to the office of the Deputy Judge President, together with a letter explaining the facts and that the application is brought in terms of section 295 of Act 38 of 2005 and requesting a date for hearing. In the event that any urgency exists in the hearing of the matter, that must be set out in the letter as well.
3. The Deputy Judge President will then give further directions as to how this matter shall be heard in due course, including the allocation of the judge for the hearing the matter.
4. Any consideration in respect of holding the hearing “in camera” (no member of the public can be present), must be addressed to the judge who is allocated to hear the matter, once the parties are notified of the relevant date of the hearing.

* ex parte is a Latin term meaning “from one party”, indicating that one of the parties in respect of the proceedings is absent.