In the second of our articles during National Surrogacy Week (which runs from 2nd to 8th August 2021), Helen Page will be looking at the criteria that need to be fulfilled to be become the legal parent of a child born through surrogacy and exploring some of these in closer detail.
Obtaining a Parental Order
The intended parent(s) of a child born through surrogacy – i.e. the person or couple who are having a baby with the assistance of a surrogate mother – will not automatically be the legal parent of that child. The only way to become the legal parent is to apply to the Court for a Parental Order under the Human Fertilisation and Embryology Act 2008 (‘HFEA’).
The Section 54 Criteria
Before a Parental Order is granted by the Court, it must ensure that a number of criteria have been fulfilled. These are set out in Section 54 of the HFEA 2008. In summary, the criteria are as follows:
- The child must have been carried by a woman who is not the applicant, as a result of the placing in her of an embryo, sperm and eggs, or artificial insemination, and one or both of the applicants must be biologically related to the child.
- The applicants must be married, in a civil partnership, or in an ‘enduring family relationship’ (s54(2)). Since January 2019, the law now allows a single person to apply for a Parental Order, but strictly on the basis that they must be biologically related to the child (s54A(1)(a)).
- The application for a parental order must be made within six months of the child’s birth.
- The child’s home must be with the applicant(s) at the time of the application being made and when the Parental Order is made.
- Either one, or both, of the applicants must be domiciled in the UK. This is mandatory if there is just one applicant.
- The applicant(s) must be over the age of 18.
- The surrogate mother (and her spouse / civil partner / partner, if applicable) must consent to the making of the Parental Order.
- The court must be satisfied that no money or other benefit has been given by, or received by, the applicant(s).
Exploring the criteria in more detail
Whilst some of the criteria are straightforward and self-explanatory, others require a little more thought.
What is an “enduring family relationship”?
Where the couple who are applying for a Parental Order are not married or in a civil partnership, they must demonstrate instead that they are in an “enduring family relationship”. The HFEA 2008 does not provide any guidance as to what that term means. The Courts have therefore been asked to consider this question on numerous occasions. In the case of Re F & M , Ms Justice Russell commented that it was clear that parliament “intended” for the Court to decide whether or not a relationship is an ‘enduring family relationship’ and that this decision is going to be based upon the specific facts of the case.
In Re F & M (Children) (Thai Surrogacy) (Enduring family relationship) , the Court was asked to look at whether the applicants were in an enduring relationship in circumstances where their relationship began after the intended mother agreed to enter into a surrogacy arrangement with the surrogate mother. The Court was satisfied in that case that they were, as they had gone through the surrogacy process and subsequent court proceedings together, as well as bringing the children up together.
The Court has also considered whether a couple who has separated could still be in an enduring family relationship. In Re N (Surrogacy: Enduring Family Relationship: Child’s Home) , a same-sex couple (who were not married or in a civil partnership) had separated after they applied for the Parental Order. The Court found that the requirement to live together as partners did make any specific reference to a particular time when this needed to be. It was satisfied on the facts that the couple did not need to be in an enduring family relationship when the Parental Order was made and that this s54 criteria was satisfied.
Where is ‘home’?
Another one of the criteria to be satisfied is that the child’s home must be with the applicant(s) when both the application and the Parental Order are made. But where is home? At first glance, this may look like a straightforward question, but it can actually be much trickier to determine.
This issue arose in the 2019 case of Re N (referred to above), where the child’s parents had separated. In that case, the Court held “adopting the flexible construction to the concept of home, that her home has continued to be with them, albeit they have been living in separate homes since August. There is no suggestion [the child] has any other home apart from when she is with either [of the applicants].” The Court was satisfied that, notwithstanding the fact that the applicants had separated, the child’s home was still with them both.
There have also been further cases that have looked at this issue during 2020 and more recently in 2021. In the case of A (a child: surrogacy s54 criteria) , Mr Justice Keehan said:
“The term 'home' must be given a wide and purposive interpretation. The authorities make clear that the term is not and should not be restricted to cases where the applicants live together under the same roof. It is the plain intention of the parents that [the child] will be cared for by both of them, albeit not necessarily, and not at present, on the basis of an equal shared care arrangement. Giving a wide and purposive interpretation of the word 'home', I am satisfied that [the child] has his 'home' with the mother and the father.”
This decision was endorsed by the Courts later in 2020, in the case of Re X, and in 2021 in the case of Re Z (Parental Order: Child’s Home) . In Re Z, the child was living in foster care at the time the Parental Order was made and not with either of the applicants. However, the Court was satisfied that the criteria set out in Section 54 had been met because, as Mr Justice Keehan had said in the case of A (a child: surrogacy s54 criteria)  referred to above, the definition of ‘home’ should be given a “wide and purposive interpretation”. The circumstances of this case were unique and involved issues with travel restrictions as a result of the COVID-19 pandemic and historical relevant convictions.
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