Surrogacy: Parental Order Made Years After Child Was Born

For the first time the English court has made a parental order for a person who is an adult and who was born as a result of a surrogacy arrangement.

This issue has not previously come before the court with parental orders usually being made (and the law envisaging that they be) in respect of children of surrogacy arrangements. However, it was only last year when Mr and Mrs X became aware that they were not the legal parents of the child (“Y”) in England and by that time Y was 23 years old.

Mr and Mrs X had used a surrogacy agency in the United States because they were aware of the uncertain framework for surrogacy in England. The pre-birth legal process was conducted in Los Angeles and the Superior Court of California made an order declaring Mr and Mrs X Y’s joint legal parents. However, Mr and Mrs X were unaware that when they shortly later returned to England with Y the legal position was very different.

The legal position in England

The legal framework relating to parental order applications is set out in the Human Fertilisation and Embryology Act (“HFEA”) 2008:

s. 33 the person who gives birth to the child remains the legal mother.

s. 35 if the surrogate’s husband consented to the surrogacy and his sperm was not used then he remains the legal father.

s. 54 the criteria before the court can make a parental order can be summarised as:

(1.) The biological connection with at least one of the applicants and the child, and the child was not carried by one of the applicants.

(2) Whether the applicants at the time of the application and at the time when the court is considering making an order are married, civil partners or in an enduring family relationship.

(3) The application should be made within six months of the child’s birth.

(4) At the time of the application and at the time when the court is considering making an order is the child’s home with the applicants.

(5) At the time of the application and at the time when the court is considering making an order at least one of the applicants is domiciled in this jurisdiction.

(6) Whether the applicants are over 18 years.

(7) Whether the surrogate mother and her husband, if applicable, have given consent, freely and with full understanding, to the making of a parental order at least 6 weeks after the birth of the child.

(8) Whether any payments have been made, other than for expenses reasonably incurred and, if so, do they require authorisation by the court.

If those criteria are satisfied the court then needs to consider whether making the order would meet the lifelong welfare needs of the child.

Case law has evolved over time regarding the making of a parental order outside of the 6 month time limit and it is established now that it is not a bar to an application but it depends on the facts of each case, in particular any reasons for the delay in making the application.

Cases have also demonstrated the need for the concept of ‘home’ to be construed flexibly with courts taking a ‘broad and purposeful interpretation’ to the concept of what is home.

s. 3 of the Human Rights Act 1998 (“the Convention”) requires the court to read the legislation to give effect to it in a way which is compatible with any Convention rights that are engaged:

Article 8:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or in the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Article 14:

The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

There is no express provision in the HFEA or Convention preventing an application in relation to an adult compared to other legislation, for example, relating to children arrangements and adoption where there are such age limitations.

Outcome

At the time of the application and making of the parental order Mr and Mrs X were married, living in the jurisdiction and still in contact with Mr and Mrs Z who confirmed their consent to the court making the order. No one else would be prejudiced by the making of the order. The reason for the delay in making the application was clear and the making of the order outside the timeframe was entirely justified to protect the Convention rights engaged.

The Article 8 rights were engaged as Mr and Mrs X and Y had a clearly established family life, are genetically related and there would be serious legal consequences for them if the order was not made. By virtue of their close family life there is sufficient reason to conclude that the requirement that Y had his home with Mr and Mrs X was satisfied. The Article 14 rights were engaged as if the order is not made then Y would not be able to have Mr and Mrs X recognised as his legal parents. There was accordingly an obligation for those rights to be protected and no order other than a parental order would secure this.

Conclusion

The following poignant statement was made by Mrs Justice Theis DBE in her judgement:

“The effect of a parental order will recognise what they had all thought was the position for so many years. It is clearly the right order to make, the consequences of not making it would be significant and lifelong and not reflect the reality for everyone on the ground.”

This is a welcome attitude towards recognising the significant and life changing journey undertaken by those who go through surrogacy in order to have a child. The Law Commission’s consultation on surrogacy law closed in 2019 and was reported on in March 2023 and now we await the government’s response having reviewed the recommendations for reform due in Autumn this year.

It is crucial that anyone considering surrogacy understands the possible legal implications at each stage of the process. Taking early legal advice from specialist family lawyers like Family Law in Partnership is strongly recommended. To find out more about how our top London family lawyers can help with your surrogacy arrangements, visit our dedicated website page here.

The author of this blog, Kara Swift, is a Senior Associate at Family Law in Partnership. She advises on all aspects of private family law. Kara has a particular interest in the law relating to surrogacy, recording a podcast – An Introduction to Surrogacy – with a barrister specialising in this field of law which can be accessed here.

Kara was named as a Rising Star by Legal 500 UK 2022. She was also named Family Law Young Solicitor of the Year 2019 in the prestigious LexisNexis Family Law Awards.