Mr & Mrs X sought a parental order in relation to their son, Y, who is now 24, following a surrogacy arrangement with Mrs Z. Her husband, Mr Z was also a party.
The parties had entered into a surrogacy arrangement in the USA and obtained orders there regarding their parentage. They had thought that all necessary steps had been complied with when they returned with Y to the UK. They maintained a relationship with Mrs Z and her husband. In September 2021, Mrs Z contacted them to let them know that she was involved in proceedings for a parental order here regarding another child she had carried as a surrogate & was aware that she hadn't engaged in a similar process with regards to Y. By this time, Y was already an adult.
Mrs Justice Theis granted a parental order. She focused on the "enormous significance" of the application for the individuals involved and that her order would recognise what they had thought was the position for so many years.
Although s.54 of The Human Fertilisation and Embryology Act (HFEA) 2008 requires an application to be made within six months, there are now several authorities where an order has been granted past the six months. Reading down the statute to protect Article 8 rights to family life were clearly engaged. Although Y was now an adult, unlike the Children Act 1989, which clearly specifies that a child is someone under 18, there is nothing in HFEA 2008 that prevents an order being made in favour of someone who is no longer a child. S.54 also required Y to have his home with the applicants. The court has given a purposive interpretation to this provision, which should be construed flexibly. Y had spent his childhood in Mr and Mrs X's home and still spent time with them there. They had remained as one family unit.
Mrs Justice Theis noted that the parties had not known an order would be needed until September 2021. Whilst making an order would not adversely impact anyone, not making an order would have profound consequences for all the parties.
Antonia Felix says: This is another humane, practical decision regarding surrogacy, but perhaps highlights the extent to which the court has moved beyond the confines of s.54 and takes an Article 8-based approach to these applications. There was an important acknowledgment that there may well be other families in a similar situation who need to urgently consider their position and any consequences of this. Many Family practitioners hope that when the Law Commissions of England and Scotland provide their recommendations for the reform of surrogacy law, they will propose to remove the time limit bar altogether. It is also a further example of how vital it is for intended parents to take advice before embarking on a surrogacy journey so that they understand the legal implications.