Donor insemination
Sperm is put inside the person getting pregnant. This can be done at home, with sperm from a licensed fertility clinic, a sperm bank or someone you know.If you choose donor insemination, it’s better to go to a licensed fertility clinic where the sperm is checked for infections and some inherited conditions. Fertility clinics can also offer support and legal advice.If the sperm is not from a licensed fertility clinic, the person donating the sperm can get tested for sexually transmitted infections at a sexual health clinic.In the UK, the HFEA makes sure licensed fertility clinics run safely and legally.”29.The guidance set out on the website for the Human Fertilisation and Embryology Authority recommends the use of a licenced clinic over the use of home insemination using donor sperm for safety reasons, but likewise does not suggest that the use of home insemination will prevent an application for a parental order under s.54 of the 2008 Act. 30.Within the foregoing context, and whilst it is plain that from a the point of view of safety that insemination at a licenced clinic is preferable to home insemination, I am satisfied that the court is not prevented from making of a Parental Order pursuant to s.54 of that 2008 Act by the fact that the subject children have been conceived by way of surrogacy using home insemination pursuant to a private surrogacy arrangement. The contrary view expressed by the Magistrates in my judgment conflates the question of a person’s status under Part II the 2008 Act in the specific situations of assisted reproduction dealt with in ss. 33 to 53 with the separate and different question of a person’s entitlement to a parental order under the 2008 Act following surrogacy, which entitlement is in my judgment governed solely by the criteria in s.54 of the Act. In this context, I now turn to the application of those criteria in this case.Merits31.DY and CY were carried by the respondent, who is not one of the applicants, as a result of her artificial insemination with the sperm of AY. In the circumstances, the terms of s.54(1)(a) and s.54(1)(b) of the 2008 Act are satisfied in this case. In my judgment, the terms of s.54(1)(c), which require ss.54(2) to s.54(8A) to be satisfied, are also met in this case as follows.32.The applicants are married. The Cafcass officer Ms Hughes has seen the applicants’ marriage certificate. Pursuant to the decision of Theis J in Y & Anor v V & Ors [2022] EWFC 120, it is clear that. 54(2) of the Human Fertilisation and Embryology Act 2008 applies to same-sex marriages. In the circumstances, I am satisfied that the requirements of s.54(2) of the 2008 Act are likewise satisfied in this case.33.Section 54(3) of the 2008 Act requires that, subject to the exception set out in s.54(11), which does not apply in this case, the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born. The applicants made their application in respect of CY and DY on 15 May 2022, 6 months and 27 days after DY and CY were born on 18 October 2021. The applicants application was therefore made out of time. It is however, now well established that the court may interpret s.54(3) of the 2008 Act purposively and, in an appropriate case, make a parental order notwithstanding the fact that the application was not made within the six-month time limit (see Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349). In deciding whether to take this approach, the authorities suggest that the welfare interests of the children involved, and the courts inherent discretion in considering such an application.34.In this case, I am satisfied that there is a legitimate explanation for the application being made 27 days late. Following her birth, CY required very significant medical intervention in the circumstances I have described. In such circumstances, CY’s medical needs understandably took priority over confirming her legal status. In my judgment, taking into account the fact that the parental order will influence not just CY and DY’s legal status but also their identity and that, in that context, the court is looking at a situation concerning legal status and identity which will stretch many decades into the future, having regard to CY and DY’s best interests as my paramount consideration it would not be consistent with those best interests to allow a delay of less than one month to prevent the making of an order under s.54 of the Act. 35.Pursuant to s.54(4) of the 2008 Act, at the time of the applications the children must have their home with the applicants and the applicants must be domiciled in the United Kingdom. At the time the applications for parental orders were issued in respect of CY and DY, they had their home with the applicants for the purposes of s.54(4)(a) of the Act.36.With respect to the question of domicile for the purposes of s.54(4)(b) of the Act, as observed by Theis J in ELO v CLO (Recognition of a Nigerian Adoption Order) [2017] EWHC 3574 (Fam), citing the decision of the House of Lords in Mark v Mark [2006] 1 AC 98, the object of determining a domicile is to connect the person with a particular system or rule of law determining personal or family status or property rights. In this context, Theis J distilled the following principle from the decision of the Court of Appeal in Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577:i)A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it.ii)No person can be without a domicile.iii)No person can at the same time for the same purpose have more than one domicile.iv)An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.v)Every person receives at birth a domicile of origin.vi)Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise.vii)Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice. In order to acquire a domicile of choice the intention of residence must be fixed and for the indefinite future.”37.As I have noted, BY moved to the United Kingdom in September 2005 and has resided in this jurisdiction for a period of some 18 years. He has a permanent right to remain in the United Kingdom under the EU Settlement Scheme. The applicants have an established life in the United Kingdom and consider themselves as domiciled in the United Kingdom. In circumstances where a person is, in general, domiciled in the country in which he is considered by English law to have his permanent home, and may secure a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, I am satisfied in these circumstances that BY has a domicile of choice in the United Kingdom and is domiciled therein for the purposes of s.54(4)(b) of the 2008 Act. AY has a domicile of origin in the United Kingdom. Both applicants were aged over 18 at the time they made their application for a parental order and accordingly satisfied the terms of s.54(5) of the 2008 Act.38.With respect to the question of the respondent’s consent under ss. 54(6) and 54(7) of the 2008 Act, the respondent has provided her consent in the form of a witness statement, the contents of which she has confirmed to the court, to the Parental Order Reporter, as set out in the report of Ms Hughes, and to the court at this hearing. In the circumstances, I am satisfied that the respondent has freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental orders in respect of CY and DY in favour of the applicants. 39.By the terms of the Human Fertilisation and Embryology Act 2008 s.35, where a surrogate mother is married, her husband will acquire Parental Responsibility for the child when born unless he does not consent to the arrangement at the time of insemination. As noted above, the unchallenged evidence before the court is that the respondent has been separated from her husband for a period of some five years and has had no recent contact with him. Within this context, there is no suggestion that the respondent’s husband was aware of the arrangements at the time of the home insemination such that he could have given his consent to insemination. In such circumstances, I am satisfied that s.35 of the 2008 Act does not operate to confer upon him parentage of CY and DY (see Surrogacy: Law Practice and Policy in England and Wales, Family Law, 23 March 2018).40.Pursuant to s.54(8) the court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the making of arrangements with a view to the making of parental orders, the making of the parental orders, the giving of consent or the handing over the children. The evidence before the court, which is not challenged, is that applicants provided the respondent with reasonable funds for basic expenses during her pregnancy, including travel to and from health appointments, pregnancy vitamins and maternity clothing. No previous orders have been made under s.54 of the 2008 Act. In the circumstances the terms of both s.54(8) and s.54(8A) are satisfied in this case.CONCLUSION41.For the reasons set out, I am satisfied in this case that this court has jurisdiction to make orders under s.54 of the Human Fertilisation and Embryology Act 2008 notwithstanding that the children who are the subject of the application have been conceived by way of surrogacy using home insemination pursuant to a private surrogacy arrangement. Further, the requirements of s.54 of the 2008 Act each being satisfied in this case in the circumstances I have set out, I am further satisfied that it is manifestly in CY and DY’s best interests that these proceedings conclude and that the family are afforded certainty as to the their legal parentage. In the circumstances, I grant the applications for parental orders in respect of CY and DY.42.That is my judgment.