A recent case has highlighted the quandary that the Court can find itself in when the strict provisions governing legal surrogacy arrangements stand in the way of being able to grant legal parentage to those intending to bring up the child. This can mean that the legal parent remains the surrogate mother, who often will have no future involvement in the child’s life and may live hundreds of thousands of miles away.
To ensure legal parentage of the child, the ‘intended parents’ have to apply to the Court for a Parental Order. However, this cannot be done until after the child is born (but must be done within six months of the birth).
Under the Human Fertilisation and Embryology Act 2008 (HFEA), s.54, the Court has to be satisfied on a number of factors before making a Parental Order, including that the surrogate consents unconditionally to an order being made, and that the intended parents did not pay anything more to the surrogate than expenses reasonably incurred as a result of the surrogacy arrangement.
Due to the retrospective nature of the application process, in the majority of cases, by the time the case reaches the Court the new-born will already be living with, and attached to, the intended parents, and the surrogate may be completely uninvolved. Therefore, if a Parental Order is not made, the child is simply left without any effective legal parentage.
There are various policy reasons why the criteria in s.54 HFEA exist, and must be enforced; however, the recent case of Z and Y (Leave to Withdraw Application for a Parental Order) highlights the difficult balancing act the Court must undertake between public policy and the welfare of the child. It must satisfy itself of compliance with s.54, whilst also considering the child’s well-being who would benefit, surely, from a legal familial link with those who will act as parents throughout its upbringing.
In this case, the Court required further evidence from the intended parents about payments made to the surrogate, but the intended parents were unwilling to provide further evidence and completely disengaged from the application. This resulted in Mrs Justice Theis having to decide whether to grant permission for the intended parents to withdraw their application for a Parental Order which, again, has to be considered with regard to the welfare of the child.
Permission was granted, but consideration was given to a number of other available options, including adjourn the application and try to encourage the intended parents to provide the necessary evidence; adjourn the application generally in the hope the intended parents change their minds; or make the Parental Order without requiring further evidence. The former two options would seem pointless in circumstances where the intended parents had given clear indication that they were firmly not wishing to pursue their application, and the latter could have formed a dangerous precedent in terms of ensuring compliance with HFEA.
Whilst nothing in this case prevents the intended parents from being able to parent the child day-to-day, as they are still able to act on the authority of Parental Responsibility (granted by other types of court order), the case does emphasise warnings against abandoning/not pursuing the formality of a Parental Order.
Firstly, particularly in the case of the intended mother, whilst she can have parental responsibility from being granted a Child Arrangements Order, this is not absolute and would fall away should it be discharged for any reason. Without a Parental Order having been made, the surrogate remains the legal mother.
Secondly, there must be consideration of the legal impact on provision made following the intended parents’ deaths, as the child’s inheritance status would not be that of a legal child.
An interesting element of this case is at paragraph 22 of her Judgment, where Mrs Justice Theis comments that, despite the application having been withdrawn, the intended parents would be able to make a new application in the future (should they change their mind). This would be outside of the six month time limitation provided by s.54(3) HFEA; however, Mrs Justice Theis comments that the Court is very likely to allow such an application to proceed as this order would meet the welfare needs of the child. It is therefore difficult to think of a circumstance whereby the ‘six month rule’ would be strictly enforced.
It may be that some of the difficulties highlighted in this case will be mitigated upon implementation of new Law Commission proposals for surrogacy reform. You can read more about them in our blog ‘Surrogacy UK Law – Proposals to reform complex laws’
If you have any questions about surrogacy, please contact our Family Team.
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