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Couple Declared Legal Parents Of Surrogate Son Born In 1998

X v Z (Parental Order Adult) [2022] EWFC 26

A recent Family Court ruling granting a UK couple a Parental Order concerning their adult child born by surrogate in the United States in 1998 has highlighted the fact that UK surrogacy law remains desperately out of date. The decision in X v Z (Parental Order Adult) is the first time a judge in England and Wales has made a parental order that relates to a person aged older than 18, who was born as the result of a surrogacy arrangement.

The background to the decision

The parents of the child, Mr and Mrs X (parties are unable to be named as the case was heard in private) entered into a gestational surrogacy arrangement with a woman in California in the late 1990s. At the time, surrogacy law in the UK was uncertain. In California, however, state law recognised Mr and Mrs X as the child’s legal parents immediately after birth.

Mr and Mrs X were matched with a US surrogate, referred to as Mrs Z. After successful fertility treatment at a clinic in California, Mrs Z became pregnant with an embryo created with gametes from Mr and Mrs X.

The child, referred to by the Court as Y, was born in 1998 and Mr and Mrs X were named as the legal parents on the US birth certificate. The couple returned to the UK and remained in close contact with Mrs Z.

In 2021, Mr and Mrs X became aware that the Californian Court order and Y’s birth certificate naming them as parents were not recognised under UK law. Instead, the law in England and Wales recognised Mr and Mrs Z as the legal parents.

Even though Y was an adult and the application fell well outside the normal six-month window for overseas surrogacy birth applications, Mr and Mrs X applied for a Parental Order with the full support of Y and Mr and Mrs Z.

The Court’s decision

Mrs Justice Theis, after considering the provisions of the Human Fertilisation and Embryology Act 2008 (the Act), granted the Parental Order. She concluded that the Act did not limit Parental Order applications being made only in relation to children.

The conditions for a Parental Order are provided for by section 54 of the Act. Justice Theis ruled that Mr and Mrs X met all the conditions, including:

  • There was a biological connection between Mrs X and Y
  • Y was carried by Mrs Z
  • Mr and Mrs X were married, domiciled in the UK, and were both over 18 years, and
  • Mrs Z consented to the Court making a Parental Order

Under section 54(4)(a), Y was required to have his ‘home with’ the applicants. Mrs Justice Theis ruled that even though Y was an adult at the time of the application by Mr and Mrs X, the requirement was satisfied. Y had lived with his parents throughout his childhood and remained close to them. Although he worked abroad, he would regularly visit his parents and stay at their home. The family life Mr and Mrs X had established existed throughout Y's life and the three remained entwined and inextricably linked. The parties' rights under the European Convention of Human Rights (ECHR), art.8 were clearly engaged and pointed toward the Court fortifying Y's legal parental relationship with Mr and Mrs X, so that those rights could be appropriately and effectively acknowledged.

The Law Commission’s recommendation regarding surrogacy law

The number of couples opting to have a child via surrogacy is increasing. The law governing surrogacy, however, has remained essentially the same for the past three decades (although there has been the addition of the 2008 Act).

Over the past 30 years, there have been significant changes in social attitudes around surrogacy, as well as major medical and scientific advancements. The Law Commission has acknowledged that surrogacy laws, especially those concerning payments to the surrogate, are confusing and need updating. Furthermore, under UK law, the woman who carries a baby is the mother of that baby unless and until a Parental Order transferring parenthood is applied for and granted. This process can take many months and although in most cases, the child can live with the intended parents, they are unable to make significant decisions regarding the child and are not recognised as his or her parents. Most concerning is the fact that the surrogate can change her mind and decide to keep the baby, an undoubtedly devastating outcome for the intended parents.

To address the problems with the current surrogacy laws, the Law Commission has made the following recommendations:

  • Create a new surrogacy pathway in which the intended parents will be recognised as the child’s true parents immediately.
  • Create rules around safeguarding and surrogacy arrangements, including the requirement for counselling, to mitigate the risk of surrogacy arrangements breaking down.
  • Provide for the recognition, on a country-by-country basis, of international surrogacy arrangements.
  • Improve the Parental Order regime by:
    • removing the six-month statutory deadline
    • removing the surrogate’s absolute veto to the grant of a parental order (enabling the best interests of the child to prevail), and
    • introducing an additional alternative eligibility requirement of habitual residence to assist those unable to meet the domicile criteria.
  • Provide immigration law guidance for intended parents who plan to engage a surrogate overseas and return to the UK with the child.
  • Set out guidelines regarding surrogacy payments.

The Law Commission is currently in the process of drafting finalised recommendations for reform and an initial Bill of proposed changes, which is due to be completed in Autumn 2022.

Final words

Although the case of X v Z (Parental Order Adult) has eroded the requirement for couples to apply for a Parental Order within six months of the birth of a child born by surrogacy, those choosing surrogacy as an option to create a family still face significant uncertainty. The Law Commission’s proposed recommendations and Bill will go a long way to updating the law to bring it in line with medical, scientific, and societal developments. This will help ensure intended parents and surrogates have a clear understanding of what they are entering into and the role each must play to ensure the welfare of the child.

If you do have any questions or would like some more information about the legal aspects of Surrogacy please contact our Specialist Family Law Partner; Kim Lehal on 07972621070 or email Kim at kimlehal@brethertons.co.uk