Surrogacy Parents Achieve Change in the Law

In a decision which was acknowledged to be of considerable public importance, a British couple have been declared the legal parents of their surrogate baby after the country’s top family judge went to considerable lengths to come to their aid.



In order to enable the boy’s formal recognition as the couple’s son, the President of the Family Division, Sir James Munby, for the first time waived a statutory time limit which had previously been considered to be ‘written in stone’.



The boy – referred to as X – was born in India to a surrogate mother, using a donor egg and the British man’s sperm. The couple brought him back to Britain and had no inkling that, under both English and Indian law, they had no parental rights over the boy. The surrogate mother and her husband had remained his legal parents.



More than a year passed before the couple’s quandary emerged and the boy was made a ward of court, although he continued to live with the couple. Faced with legal estrangement from the boy they considered their son, the couple sought a parental order under the Human Fertilisation and Embryology Act 2008.



They faced an apparently impassable obstacle in that the Act demands that such applications ‘must’ be made within six months of the surrogate birth. However, in a ruling which broke new legal ground, the judge decided that the High Court had power to extend the time limit and made the parental order sought.



He observed, “Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? That is the very antithesis of sensible; it is almost nonsensical.” The judge also considered that applying the time limit so strictly could violate X’s human right to respect for his family life.



There was not a shadow of a doubt that the surrogate mother and her husband had no wish to exercise their parental rights and the alternative of the couple adopting X would ignore the psychological reality of his identity. The judge concluded that the couple and X would ‘suffer immense and irremediable prejudice’ if their parents/son relationship remained unrecognised in law.