In our third and final blog in the National Surrogacy Week (https://surrogacyweek.co.uk/) series, we look at the first ever Parental Order that was made in respect of a surrogate born child who is now an adult.
It is often said that you don’t know what you don’t know. And in this case, the intended parents, Mr and Mrs X, did not know that they were not their child’s legal parents until September 2021 when the child, ‘Y’, was 23 years old. They had a birth certificate issued in California, where Y was born via surrogacy, which had their names on it and an order made in the Superior Court of California declaring them as the joint legal parents and so they assumed they were also legal parents in the UK. This, however, was not the case then, and is not the case now. Unfortunately, the intended parents had not been advised by the US lawyers that they should obtain separate legal advice in the UK.
It was only after the surrogate, Mrs Z, contacted the parents 23 years after the birth to alert them of this, that they had any idea that they were not their child’s legal parents in the eyes of the UK law. The surrogate was only aware because another child she had carried pursuant to a surrogacy arrangement was in the same position.
The parents immediately took legal advice and were advised to make an application for a Parental Order forthwith. The surrogate’s consent would still be needed, and she did consent. It was extremely fortunate that the surrogate and the intended parents had stayed in touch as without the surrogate reaching out to deliver the surprising news, the intended parents would have been none the wiser and there could have been significant and disastrous consequences if the situation had continued.
It is important to highlight this case as there could be other intended parents who have children born via surrogacy in international jurisdictions where their legal parenthood position is established there, but where they have not obtained a Parental Order here and therefore do not have legal parenthood.
In the UK, regardless of where the surrogacy takes place, the surrogate is the legal mother of the child (section 33 Human Fertilisation and Embryology Act 2008 ‘HFEA 08’). If she is married, which the surrogate Mrs Z was, her consenting husband, Mr Z, is the legal father (s35 HFEA 08).
To transfer legal parenthood from the surrogate and her husband to the intended parents, the intended parents must be eligible for and must apply for and obtain, a Parental Order in the UK courts. A Parental Order extinguishes forever the legal status and parental responsibility of the surrogate and her husband and confers it on the intended parents. This order therefore reflects the intentions of all the parties and secures the child’s legal parentage.
Without obtaining a Parental Order for the whole of Y’s childhood his parents did not have parental responsibility for him and would not have been able to make any medical or educational decisions for him. Only the surrogate and her husband could do that. Mr and Mrs X were on the one hand lucky that they seemed to have not been hampered by this fact during Y’s minority, but on the other hand, had any medical or educational establishment queried the Californian birth certificate (and why would they?) they might have been alerted to this anomaly sooner.
Mr and Mrs X were also lucky that their marriage did not break down during Y’s minority, or since. As a couple s54 HFEA 08 requires only one of the applicants to be biologically connected to the child (s54 (1) (a)). Whilst in this case both Mr and Mrs X were biologically related to Y, had only, say, Mr X been biologically related and the parties had divorced before finding out that neither of them were legal parents, only Mr X as the biological father would be able to apply for a Parental Order. Clearly, that would have been unfair to Mrs X and no doubt further legal wrangling would have been required in those circumstances.
Without knowing that the child was not their legal child, Mr and Mrs X may not have made Wills, relying instead on the intestacy laws where assets would pass to spouse and children. However, because they were not Y's legal parents, if they had died before obtaining the Parental Order, Y would not have been able to inherit as he would not have been the legal issue of Mr and Mrs X.
Understandably, therefore, Mr and Mrs X wanted to do everything to sort this out as soon as possible.
To be eligible for a Parental Order, Mr and Mrs X would need to satisfy all the s54 criteria. The most obvious of the criteria they did not meet was s54 (3), which states that the application must be made within six months of the birth. They were quite clearly way outside of that time limit!
However, fortunately for Mr and Mrs X, case law was already established which has made it easier to get around this criterion. The case of Re X [2015] 1 FLR 349 is the leading case on this issue, set down by Sir James Munby, the then President of the Family Division. In that case he said:
“Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe s54(3) as barring forever an application made just one day late is not, in my view, sensible”.
There have since been several cases brought outside the six-month time limit which rely on this precedent, and practitioners are hopeful that when the Law Commissions of England and Scotland provide their recommendations for the reform of surrogacy law, they will propose the removal of this criterion altogether.
The knottier issues that the court had to grapple with was whether it could even make a Parental Order for an adult, and whether s54(4) was met which requires that at the time of the application and at the time of the order the child’s home must be with the applicants.
Dealing first with the question of Y being an adult, the representatives for Mr and Mrs X (Deirdre Fottrell QC) and for Y (Sharon Segal) jointly submitted that there was nothing in the HFEA 08 that prevents a Parental Order being made in favour of someone who is no longer a child. Whilst the legal framework clearly envisages that the application would relate to a child, there is no express provision in the HFEA 08 preventing an application being made that relates to a person who is now an adult. This, however, contrasts with:
They also jointly submitted that there is no reason to believe that Parliament either foresaw or intended the potential injustice that would result in this case if a Parental Order could not be made.
They submitted that when looking at the legislation through the lens of the Human Rights Act, the court cannot distinguish between the rights of adults and children, and there is nothing in Re X to suggest that adult children are any less worthy of legal protection and recognition than children.
Both Counsel submitted that Y’s Article 8 rights were engaged because:
Both Counsel also submitted that Y’s Article 14 rights were engaged, because if the Parental Order was not made, then the surrogate and her husband would remain Y’s legal parents and his inheritance rights would be impacted.
They argued that as those rights are engaged, they come with an entitlement to have legal protection for their family unit and there is a positive obligation to ensure the protection of such rights.
Lastly, they argued that no other order would secure the legal parent/child relationship in a lifelong way as a Parental Order does. No one else suffers any consequences if the order is made, but if the order isn’t made then the consequences for Mr and Mrs X and Y would be serious and lifelong.
In relation to the s54(4) criterion, whether Y had his home with Mr and Mrs X at the time of the application and the making of the order, they argued that the court had made clear in a number of previous cases that it should give a purposive interpretation to this provision. It was argued that the Article 8 rights that exist both as to family life and identity provide the necessary foundation for the court to conclude that at the relevant time this requirement was satisfied.
The Judge, Mrs Justice Theis, described the statements provided by Mr and Mrs X as ‘a compelling account’ of the impact on them of receiving the news that they were not and never had been Y’s legal parents.
She said that given Y’s age, the protection of his inheritance rights and the consequences that flow from his legal status as a child of Mr and Mrs X, and not Mr and Mrs Z, was of particular significance.
Mrs Justice Theis quoted from Y’s statement in the Judgment, a sentiment worth repeating:
“The granting of a parental order would mean that it would never again be possible to challenge legally our family tree and would restore my understanding of surrogacy as being a ‘normal’ part of life, rather than something which leads to one’s relationships with parents or grandparents being questioned…If this application is not granted, I will never be able to be considered in law to be their son. That is simply unimaginable for us all…my parents have been my parents in every way since birth. They have made all of the decisions about my care and welfare; they have always been there for me as a child and now as an adult. My identity as their legal child is wholly dependent on this application being granted. It is of fundamental importance to me and to any children I might go on to have.”
In relation to the s54(4) criterion, she agreed that the court should take a ‘broad and purposeful interpretation’ to the concept of what is home. On the basis that Y had lived with Mr and Mrs X throughout his childhood and remained close with them, often spending time with them at their family home, she found that the ‘home with’ requirement was satisfied.
In relation to the s54(3) criterion, she stated that whilst the Re X case had permitted an application outside the six-month time limit, the court should always ‘anxiously consider’ whether the individual circumstances of the particular case justified the application being made outside the time limit. She held that prior to September 2021 none of the parties were aware of the need to apply for a Parental Order. Upon discovering this, they promptly sought legal advice and made the application. The delay, therefore, was justified.
In relation to Y’s Article 8 rights, she said that they were clearly engaged. Section 3 of the Human Rights Act makes clear that primary legislation should be read in a way that is compatible with Convention rights.
She described a Parental Order as a ‘bespoke order’ created specifically for surrogacy arrangements and which have a ‘transformative effect’ affecting the status of all parties. It impacts the legal relationships in a lifelong way, with long-term practical and psychological implications for everyone’s identity, in particular the child.
The making of a Parental Order for Mr and Mrs X would provide the lifelong security of their parental relationship with Y being recognised as a matter of law. Without it they would have no legal relationship with him.
For Y, the making of a Parental Order would cement his rights to family life, including his identity rights legally as Mr and Mrs X’s child.
For Mr and Mrs Z, it would divest them of the legal parental relationship that they retained with Y in this jurisdiction, which would then reflect the position as it is in the States.
She held that the fact that Y was an adult did not preclude the court from making the Order. She accepted the submissions that the HFEA does not limit applications being made only in relation to children. There was nothing in the information provided about the policy considerations underpinning the legislation to suggest that Parental Orders are limited to children.
In a final belt-and-braces approach, Mrs Justice Theis said that even if she was wrong about her analysis, she was entirely satisfied that the HFEA 08 should be ‘read down’ to ensure the Article 8 rights of Mr and Mrs X and Y to the family life they had established including, in particular, Y’s identity rights, were properly recognised.
As such, the Parental Order was made in favour of Mr and Mrs X.
Mrs Justice Theis has often called surrogacy arrangements a legal ‘ticking time bomb’, and that was certainly true in this case. The bomb on this occasion, however, was diffused in time. So much could have gone wrong at any time during Y’s childhood, or since.
Mr and Mrs X were extremely lucky to have discovered this legal anomaly and taken steps in time to rectify it.
This case certainly shows how important it is for intended parents embarking on a surrogacy journey to ensure that they understand the legal implications before conception and obtain a Parental Order. There is no substitute for getting early legal advice. The consequences for not doing so could be ‘unimaginable’.
