An Act of confusion

The growing number of childless couples entering into surrogacy arrangements has added a new dimension to family law litigation.

This area of family law was the focus of a recent judgment given in chambers in the High Court's Family Division by Mr Justice Johnson.

The decision was made public because of the nature of the issues it raised.

The judge paved the way for a childless couple to call the surrogate daughter carried for them by an un-married mother of two their own by making a parental order in respect of the baby. And he agreed to the couple paying £8,280 to the woman to cover clothing, medical treatment and lost wages resulting from the pregnancy.

The case emphasised the often unexpected human anguish surrogacy arrangements can create. The surrogate mother had an egg placed in her from the wife of the childless couple. The egg had been fertilised by the sperm of an un-known donor

However, she told the court that after the birth she was confronted by a depth of feeling towards the baby that "took her by surprise".

She agreed to the making of a parental order in favour of the couple who made the arrangements with her. But that was only after she had made preliminary moves towards having the child placed with her.

Christine Doughty, of Nottingham-based firm German & Soar which represented the couple, said the case highlighted confusion and conflict in interpretation of provisions of the 1990 Human Fertilisation and Embryology Act.

Doughty took on total representation of her clients, including High Court advocacy, as did Philip Bowen of the Derby-based Smith Partnership which represented the surrogate mother.

Because the surrogate mother eventually agreed to the making of the parental order the judge was not called on to interpret the law. However, he highlighted the problem created by apparently conflicting interactivity between the 1990 Act and rules relating to its implementation.

The case has raised the issue of the parental status of husbands under the provisions of the Act.

When she first took on the case Doughty said she had no doubt that because of the husband's involvement in the treatment, the husband would be legally classified as the father under the provisions of s.28 (3) of the Act. The couple already took this view having been so advised by the licensed centre which carried out the treatment.

That view was also shared by many other family lawyers. However, Doughty discovered the Department of Health disagreed. Instead it declared that such a husband would not be classified as the legal father of the child even if his sperm had been used.

The recent judgment has left the question open. Mr Justice Johnson said that on his application of the Act to the circumstances of this particular case no man was to be "treated as the father" and he hoped his ruling would draw attention to the working of the Act in this area and the problems it caused.

Doughty said the judge's ruling had left a question mark over interpretation of the provisions which needs to be clarified as soon as possible.

She said it would be simpler for practitioners attempting to apply the Act if the Act and the rules and regulations relating to it were consolidated into one piece of legislation.

"This is a case which emphasises the need for tidying up of the law from everyone's point of view. From the point of view of licensed treatment centres, from the point of view of the lawyers, from the point of view of prospective parents and the surrogate parent and from the point of view of guardians," she said.

In the mean time it is still unclear as to who can be a legal father under s.28 (3) and under what circumstances the husband can be the father as envisaged in s.30 (5).