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Parental orders in surrogacy arrangements when partners are estranged

Monday 16 March 2020

In re N (A Child) [2019] EWFC 21

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The Law Commission is currently undertaking a review of the law on surrogacy, with many suggesting that the current legislation is out of step with societal change. Currently the Human Fertilisation and Embryology Act 2008 mandates that intended parents must apply to the courts for a parental order after the child’s birth, which transfers parental rights away from the surrogate mother.

In this recent judgment, Mrs Justice Theis considered a case in which the intended parents had separated before their application for a parental order was due to be heard, and no longer lived together. This presented a problem because section 54 of the 2008 act is clear that intended parents must be ‘in an enduring family relationship’ and that the child’s home ‘must be with the applicants’ at the time the order is made.

Mrs Justice Theis followed the approach in A v P [2011] EWHC 1738 (Fam) where the intended father had died before the child’s birth. In that case the court had been willing to read down the provisions of the 2008 act in order to ensure compatibility with the Article 8 right to family life. Mrs Justice Theis found that reading the legislation in a purposive light, the requirement for an enduring family relationship was satisfied because the intended parents had been in such a relationship when the application was made. 

With regard to the question of the child’s home, Mrs Justice Theis made reference to the judgment of Sir James Munby in In re X (A Child) (Parental Order: Time Limit) [2015] Fam 186, who found in similar circumstances at paragraph 67 of his judgment that “X had his ‘home’ with the commissioning parents, with both of them, albeit they lived in separate houses. He plainly did not have his home with anyone else.”

The parental order was duly made with the support of all parties in the case.

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