Parental Order (Surrogacy): AB (a child), Re [2024] EWHC 586

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What is a Parental Order (Surrogacy)?

In England and Wales, parental orders are legal mechanisms crucial for establishing the intended parents’ full parental rights and responsibilities following a surrogacy arrangement.

A parental order is a court order that transfers parental responsibility from the surrogate (and her spouse or civil partner) to the intended parents. This order legally recognises the intended parents as the child’s legal parents, effectively making the child a member of their family.

Parental orders are governed by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). The key requirements set out in the Act for obtaining a parental order include:

  • Eligibility criteria: The intended parents must have a genetic link to the child—either one or both must be the biological parents. This means that the child must be genetically related to at least one of the applying parents, involving their egg or sperm.
  • Marital status: The applicants can be married, in a civil partnership, or living as partners in an enduring family relationship.
  • Application timing: The application for a parental order must be made within six months of the child’s birth. However, courts have discretion to extend this period under exceptional circumstances.
  • Domicile: At least one of the applicants must be domiciled in the UK, Channel Islands, or Isle of Man.
  • Consent: The surrogate (and her spouse, if applicable) must fully consent to the order. Their consent is not valid if given less than six weeks after the child’s birth. This helps to ensure that the decision is made without undue pressure.
  • Child’s home: At the time of the application and the making of the order, the child’s home must be with the applicants.
  • Payments: Any payments made to the surrogate beyond reasonable expenses require the court’s authorisation to ensure compliance with UK laws against commercial surrogacy.

Parental Order Process

The process involves a detailed application to the local family court. The court will then assess whether all the legal requirements have been met and whether granting the order would be in the child’s best interests. The court typically appoints a Parental Order Reporter, usually from the Children and Family Court Advisory and Support Service (CAFCASS), to independently verify the circumstances and provide a report to the court.

Once granted, a parental order has transformative legal effects:

  • It extinguishes the legal rights and responsibilities of the surrogate (and her spouse) and transfers legal parenthood to the intended parents.
  • The child is treated as if born to the intended parents. This impacts inheritance rights and other legal considerations.
  • The order allows for a new birth certificate to be issued. The new certificate will name the intended parents as the legal parents of the child.

Ethical and legal considerations

 

The UK’s approach to surrogacy emphasises altruism over commercialism. It is illegal to advertise for or solicit a surrogate on a commercial basis, and any agreements made with a surrogate are not enforceable as contracts. This framework is designed to protect all parties involved and ensure that surrogacy arrangements are entered into ethically and responsibly.

Parental orders (surrogacy) play a crucial role in surrogacy in England and Wales. They provide legal clarity and security for the intended parents and the child born through surrogacy. This helps to ensure that the child’s welfare and rights are paramount.

Parental Order- Surrogacy case law (AB (a child), Re [2024] EWHC 586)

This case concerns a child, referred to as AB, born through an international surrogacy arrangement in the USA. The commissioning parents, FG and GH, sought a parental order in England under the Human Fertilisation and Embryology Act 2008 (HFEA 2008). However, they had already legally adopted AB in the USA. The adoption is recognised in the UK, complicating their request for a parental order due to the existing legal status as AB’s parents through adoption.

The applicants argued that the parental order was justified on welfare grounds. They also stated that it was necessary for AB to benefit from a family trust under UK law. The Secretary of State for Education, acting as an intervener, supported the application.

The primary legal question was whether the existence of a US adoption order precluded the granting of a UK parental order. This was because both treat the child as legally belonging to the adoptive parents.

Sir Andrew McFarlane, presiding over the case, provided extensive analysis on reconciling the adoption status with the criteria for granting a parental order under UK law. He highlighted several critical points:

Recognition of US adoption in the UK:

“The adoption order, which as I will shortly describe, is automatically recognised in the United Kingdom and it has been entered into the Adopted Children Register maintained by the Registrar General for England and Wales.”

Eligibility for parental order despite adoption:

“Having identified the issue at a preliminary hearing, the proceedings were adjourned with an invitation to the Secretary of State for Education [‘the Secretary of State’], who takes the lead on matters relating to adoption policy, to assist the court by intervening.”

Legal analysis on parental orders and adoption:

“I am particularly grateful to Mr Tom Wilson, counsel, who has provided a detailed skeleton argument agreeing with and supporting the detailed submissions made by Ms Dorothea Gartland KC and Mr Edward Bennett, counsel for the applicants. Following receipt of the detailed skeleton arguments, I communicated to the parties that I, too, was in agreement with those submissions and that a parental order would therefore be granted.”

Resolution of the legal conundrum:

“There is an essential distinction to be drawn between ACA 2002, s 67 and HFEA 2008, s 54 and it is that, whilst adoption and s 67 in particular are concerned about the status of the child, HFEA 2008, s 54 is concerned with the factual criteria necessary for a court to have jurisdiction to make a parental order.”

Final Decision:

All necessary requirements for the making of a parental order are otherwise satisfied… I am entirely satisfied that the making of a parental order is in the child’s long-term welfare interests.”

Sir Andrew McFarlane concisely illustrated how legal frameworks accommodate evolving family structures. He emphasised the factual basis for surrogacy under HFEA 2008, separate from the legal status conferred by adoption under ACA 2002.

His judgment allows for the granting of a parental order despite the child’s existing status under an adoption order. The main focus was on the welfare and legal clarity for the child’s identity and rights within the UK legal system.

How can Expert Family Law assist?

 

Surrogacy laws can be complex, which is why it is important to understand your rights. Expert Family Law have a panel of solicitors who can assist with all family law matters including parental orders (Surrogacy), adoption, child arrangements orders etc.

Please note that we are not a firm of solicitors. We have a panel of family law firms who we may pass your case on for a fee. Expert Family Law will not charge you, the client, for our service of passing on your case.

 

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