Applications for a parental order in surrogacy cases: landmark decision to prioritise welfare & human rights ahead of strict 6 month time limit

A groundbreaking Judgment in the field of surrogacy law was handed down on Friday 3 October in the case of Re X (A Child).

A groundbreaking Judgment in the field of surrogacy law was handed down on Friday 3 October in the case of Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam). 

In the context of surrogacy, commissioning parents must apply for a parental Order from the English Courts to transfer legal rights and responsibilities from the surrogate parents to the commissioning parents. Section 54 of the Human Fertilisation and Embryology Act 2008 sets out conditions which determine whether the Court may make a parental Order which include that the application must be made within 6 months of the child’s birth.

Despite this condition, in this case Sir James Munby (President of the Family Division) made a parental Order in favour of the commissioning  parents although their application was delayed until February 2014, more than 2 years after the child was born in December 2011.

Crucially there is no reference within the Act to any discretion to extend this time limit. In a series of previous cases the Court has therefore held that it has no power to make an Order after this 6 month time limit has expired. For example in JP v LP and others [2014] EWHC 595 (Fam) where the application for a parental order was lodged when the child was 33 weeks old, Eleanor King J ruled that a parental order was not an option for the family.

Where a parental Order is denied by the Court the only other option in order to extinguish the legal rights and responsibilities of the surrogate parents is to apply for an adoption Order. The Court found that this was not attractive in this case as the commissioning father was already the child’s biological father and therefore a parental Order (which recognises that the commissioning parents were always intended to be legal parents from the child’s birth) was more appropriate.

Munby J found that the Act must be 'read down' in such a way as to ensure that the child’s right to a family life is protected.

The commissioning parents in this case were not aware of the need to apply for a parental Order. They were only alerted to this after they separated and a dispute arose regarding the child’s living arrangements (the parents subsequently reconciled during the course of the proceedings).  It is vital that anyone considering embarking on a surrogacy arrangement (either in the UK or abroad) must seek specialist advice to ensure that they are eligible to apply for a parental Order.

The case will inevitably give momentum to calls for overhaul of the law relating to surrogacy. The Court noted that no reason was identified in Parliament for this 6 month time limit. Critics call for a more transparent legal regime shifting the focus towards well-managed surrogacy arrangements with appropriate regulation and recognition of payments which are currently made to surrogates.

The number of parental orders granted falls well short of the number of children born as a result of surrogacy arrangements leaving children and their families vulnerable due to the lack of legal recognition of their parent-child relationship. In the meantime the ruling in this case is welcomed in interpreting the legal framework in a way which prioritises the child’s welfare and right to family life. 

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