Inconceivable

Children born after commercial surrogacy abroad may be stateless and parentless

The motives of two women who decided to become parents in their late sixties “would seem to have been entirely self-centred, with no thought as to the long-term welfare of the resulting children”, the president of the High Court family division said in a judgment published yesterday.

Sir Andrew McFarlane had been astonished to learn that the couple had not given any consideration to the impact on their children of having parents who were so much older. He thought the children were likely to become teenage carers when their parents were in their eighties.

Sir Andrew McFarlane

The two women, referred to only as Ms W and Ms X, are in a long-established and enduring relationship, McFarlane said. Some years ago, they decided to investigate the possibility of having children. By then, both were well into middle-age.

Apparently relying on an article they had seen in an American magazine, the couple made contact with a surrogacy clinic which they understood to be based in southern Cyprus, part of the EU. The clinic had recruited a number of Ukrainian women to act as surrogates.

Ms W and Ms X paid the clinic around £120,000 for the services it provided. At some point, they discovered that the clinic was operating in the Turkish Republic of Northern Cyprus, where surrogacy is unlawful and the placement of children with same-sex couples is not permitted by law. The self-declared republic in the northern part of Cyprus is not recognised by the UK government and consular support for British citizens is limited.

The two individuals who had donated gametes to create the embryos had been chosen by Ms W and Ms X to replicate their own racial characteristics. Embryos were successfully implanted and pregnancies became established in two surrogate mothers.

Two children were born on the same day by caesarean section, apparently at the direction of the clinic rather than for medical reasons. Although each is the genetic sibling of the other, they are not twins because they were not born of the same mother. Within a day of their birth, the babies were transferred to Ms W and Ms X at a flat they had rented in Cyprus.

It was then that the problems started, as McFarlane recounted:

Ms X was encouraged by the clinic to go on her own to the register office and sign a form in a foreign language (presumably Turkish). She later found out that by doing so, she had been registered as the mother of each of the two children…

Separately, it became clear that the fact of birth in Northern Cyprus did not afford status to the children as citizens of Northern Cyprus. The fact of birth to a Ukrainian national in Cyprus did not afford them Ukrainian nationality. In addition, of course, as yet they had no legal connection, in terms of one that would attribute status, to either of the two applicants that would, or could, be recognised in the United Kingdom (the birth certificates having been plainly issued on an incorrect basis).

The clinic, which had been seemingly very cooperative and welcoming of the two intending parents prior to birth, closed down its hospitality wing to them and became far more defensive.

Lawyers became involved and for a time, the applicants were being encouraged to take part in developing a false story, namely that Ms X, a woman in her mid-sixties, was indeed the natural mother of each of these two children. To her and her partner’s credit, they would have none of that. However, the result of that was that they did not have any paperwork from the clinic to establish the surrogacy and the paperwork they did have was on the false basis that Ms X was the children’s mother.

Thus it was, understandably, that the Home Office refused to allow the two children to enter the UK with Ms W and Ms X. It took four years before, eventually, leave to enter was given when the First-tier Tribunal granted the applicants’ applications made under European Convention on Human Rights, article 8.

The Home Office, having been refused permission to appeal by both the First-tier Tribunal and the Upper Tribunal, accepted the decision and the two children were able, for the first time, to come with the applicants to England and begin establishing a life together here at the age of four.

The good news about that saga is that, seemingly, the couple and the children, the four of them together, have come through what will have been a very stressful and most unwelcome stage in their respective lives, not unscathed, but in a positive frame of mind. In addition, in the months that followed their return, they have done well to establish family life and an orderly way of living with the children here.

McFarlane explained that the only way that the two women could become recognised as parents of the two children would be for the court to make an adoption order. After hearing an application last summer, he concluded that this would be in the children’s best interests. The children, he said, “were being well cared for, were meeting their milestones, stimulated, happy and thoroughly embedded in every way, socially, emotionally, psychologically with their two parental figures”.

But, he added, the children would need particular care because of the circumstances in which they were born. As the children’s guardian had said,

The applicants had not given any consideration of the impact on the children of having parents who are so much older and all the attendant age-related health issues which follow.

The guardian’s report pointed out that one of the applicants would be in her eighties when the children were in their early teens and the other would be in her mid-seventies.

It was very plainly in the best interests of each of these two children to be adopted, said the judge:

No other course, legally, would meet their needs. There is an urgent need for them to be consolidated, legally, into this small family unit so that they are fully siblings of each other and legally, the children of these two applicants.

But legal and public policy concerns had been raised by government lawyers and these were shared by the judge. As he said, “the account of the circumstances surrounding the birth of these two children strongly suggests that all four women at the centre of the arrangements were being exploited for commercial gain by those running this unlawful operation.”

McFarlane warned would-be parents of any age and any sexual orientation who were contemplating entering into a commercial foreign surrogacy arrangement that the courts of England and Wales might refuse to grant them an adoption order or a parental order. That would mean the “the child that they have caused to be born may be permanently stateless and legally parentless”.

He said:

The fact that the court felt obliged to make adoption orders in the present case should not be taken as any precedent that, in any future case on similar facts, an adoption order will be made.

In any event, the route taken by these applicants leading to the position of even being able to apply for adoption demonstrates the precarious nature of their circumstances and those of the children. The applicants had planned a short visit to Cyprus, yet it took four years for their entry to the UK to be granted, and that was only after the First-tier orders and Upper Tribunal refusal to grant the Home Office permission to appeal.

Put bluntly, the senior family judge concluded, “anyone seeking to achieve the introduction of a child into their family by following in the footsteps of these applicants should think again”.