Notarisation. All Human Life is here. A Matter of Birth, Marriage and Death?
Last week Louise showed how notarisation can literally be a matter of life and death. –Link-
And certainly Notaries are involved in every aspect of human existence and therefore that necessarily includes Births, Marriages and Deaths.
The function of a Notary is to certify (and financially underwrite) facts. Usually in the case of an English Notary this is done to assist persons in a foreign jurisdiction so that they can be sure of what has actually been done, or signed, and by whom, in England.
But England is a country with its own laws, rules and customs, and “abroad”, just like the past, is a separate and always foreign country.
They do things differently there.
An example:- For a valid marriage in Brazil, it is fine for someone who cannot travel to get married there, to sign a Power of Attorney and appoint someone else to go there for you. And if your future spouse can’t get there either then someone else can be appointed too. A second Power of Attorney can be made and a second Attorney can turn up for the Marriage.
So neither of the two people who turn up at the Church or Registry Office are actually parties to the marriage. But the marriage is valid nonetheless.
That procedure is not available to create a legal marriage in England. But if both parties are present in England and want to sign those Powers of Attorney before a Notary Public in England – then fine.
There is an English law against not going to your own English marriage, but no English Law against not going to your Brazilian marriage.
So the principle which I have to follow as a Notary seems to be that I can assist my clients to achieve abroad whatever the foreign law allows, unless there is an English law that says that this is something that an English Notary cannot do.
Two areas other than marriage in which Notaries are often asked to help are in relation to
1 – Assisted suicides and
2 – Surrogate births.
I have blogged before about Dignitas et al. -Here is the link-
In a nutshell, I may not assist if I know or am told that the purpose of the document being signed in my presence is to facilitate voluntary acceleration of death.
Because whilst suicide itself is not a crime, it can be a crime to aid and abet suicide, particularly for money.
Enough about Death – What about Birth? What about surrogacy and notaries?
If assisted suicide relates to “unnaturally” ending a burdensome life, Surrogacy might be seen as the opposite. It is a means of “unnaturally” bringing into being a much wanted life.
There is nuance in the word “unnatural”.
Taken neutrally, it means only “contrary to the ordinary course of nature”.
In 1978, when everything was different, a Judge called surrogacy “irresponsible, bizarre and unnatural”. He is likely to have meant, and was surely understood to be meaning “irresponsible, bizarre and deviant, inhuman, perverted” – that sort of thing.
No-one thinks like that anymore so far as I know.
But if ever there was a scope for profiteering, put overwhelming desire for a child in the mix with short supply and there you are.
After years of exploitation of their citizens becoming surrogates in the hope of alleviating poverty, India Nepal and Thailand have banned –or at least rendered illegal – commercial surrogacy. -Link to NY Times article-
And how about this for an illustration of the dark side when profit becomes the motive? – unsterile hospitals, surrogate mothers treated like cattle in Ukraine according to Aljazeera – link here –
The English Law up to date has tried to balance –on one hand- the legitimate desire of infertile or same-sex couples to raise their own children by surrogacy, and the legitimate desire of altruistic and willing surrogate mothers to assist them, whether or not to be paid for doing so against –on the other hand – the obvious and real risks of exploitation and profiteering by hard headed commercial or even criminal interests.
So in England, commercial surrogacy companies cannot exist. So if you are English, you will be going abroad if the arrangement is commercial – if you are going to pay the mother and the doctors who are working for profit.
Which is where the Notaries come in, because just like the marriage by Power of Attorney in Brazil in the early paragraphs above, what is not illegal abroad can be notarised in England if the notarisation itself in England is not illegal.
But aiding and abetting commercial surrogacy enterprises (as opposed to charitable and/or non-profit-making foundations) – is also illegal in England.
Simple enough for you?
So when a couple come to see me to notarise their surrogacy agreement from Colorado, it’s not exactly straightforward for me to work out, can I help or not?
You tell me, I’ve given you the law.
My own answer? – A resounding “It depends”.
Louise and I are back at work, so please do contact me or Chris whenever you need Notarial certification or Legalisation for your Documents– at http://www.atkinsonnotary.com – or phone me on 0113 816 0116 (internationally 0044 113 8160116)