Reported Case

Mother and father’s relationship with son legalised in judgment handed down in Z (A) (Surrogacy) EWFC 18 at the Royal Courts of Justice Family Court.

A judge has granted a parental order in a complex surrogacy case recognising the child’s biological parents and secures ‘his lifelong interests’ after it became apparent during care proceedings that neither had legitimised his birth, resulting in the child having no legal parents in the UK.

The matter concerns an application for a parental order relating to Z, who was born in 2017. The applicants are W and X, who are his biological mother and father. The respondent to the application included Y, the gestational surrogate mother who gave birth to Z in Georgia. As a result of an arrangement entered into between the applicants and given the serious nature of the proceedings, the child, Z, was also joined to them and was separately represented.

Whilst W and X adhered to the rules in Georgia, they failed to make a parental order application on their return to the UK with Z.

It emerged during the care proceedings issued in April 2020 that Z had been born via a surrogacy arrangement. The father initially stated in those proceedings that the mother had carried Z. It was only when the mother filed her evidence in the care proceedings that it became clear Z was born to Y via a surrogacy arrangement.

Background:

The applicants are Z's genetic parents. They married in 2008, separated and divorced in 2020. The mother is from Moldova and has Italian and British citizenship, as a result of her marriage to the father. The father has dual British and Italian citizenship.

The parents state they have never had a sexual relationship; the father is 20 years older than the mother and is gay. The older two children, A and B, had been born following IVF treatment undertaken by the applicants, the mother carried the children and both applicants are the genetic parents of those children.

Within the care proceedings, expert advice was received outlining the need for an application for a parental order in relation to Z. The advice stated that in the absence of such an order being made the applicants are not properly recognised as Z's legal parents and that the surrogate mother, Y, remains Z's legal mother in this jurisdiction by virtue of s33(a) HFEA 2008.

The confusing world of international surrogacy meant it was difficult to untangle the legality of the transaction.

It emerged at one point that the W had employed the services of two surrogates at the same time, but that one did not get pregnant.

It also made it difficult to track down the surrogacy mother, Y, although this was done through the agency and a $500 payment made by W.

Once Y was located and contacted and the arrangements corroborated, she consented to the parental order being made so that the genetic parents’ relationship with Z could be legitimised.

In making the order, Mrs Judge Theis, sitting in the Family Court at the Royal Courts of Justice, had to be satisfied that the relevant criteria under section 54 HFEA 2008 were met. These included:

1. The biological connection with at least one of the applicants and the child, and the child was not carried by one of the applicants (s54(1)(a) and (b))


2. Whether the applicants at the time of the application and at the time when the court is considering making an order are married, civil partners or in an enduring family relationship (S54 (2))


3. The application should be made within six months of the child’s birth (s54(3))


4. At the time of the application and at the time when the court is considering


5. Whether the surrogate mother has given her consent, freely and with full understanding, to the making of a parental order at least 6 weeks after the birth of the child (s54 (6) and (7). If such written agreement is executed outside the United Kingdom rule 13.11(4) Family Procedure Rules 2010 (FPR 2010) provides details of who can witness such agreements, including a notary public


6. Whether any payments have been made, other than for expenses reasonably incurred and, if so, do they require to be authorised by the court (s54 (8))

While there were some complexities to be considered as to whether these criteria had been met, namely whether the application had been made promptly, Mrs Judge Theis decided that they had:

“The evidence clearly demonstrates making a parental order will secure Z's lifelong welfare interests in accordance with s1 ACA 2002. Through such an order his legal parental relationship with the applicants is recognised, particularly the mother who has been responsible more recently in providing the stability of care Z's needs require. It will extinguish his legal relationship with Y, which reflects the reality of his life. A parental order will also secure his legal relationship with his older siblings in a way that brings about lifelong security for him in terms of his identity. As Ms Green noted, they are a sibling group and as such have significant attachments to each other, a parental order in relation to Z will provide a legal security to those underlying strong attachments.”


Our team: Duncan Lewis Solicitors’ child care director Laila Bhunnoo on behalf of Z, instructing Dorothea Gartland, of 4 Paper Buildings.

 

Find full details of this case on Bailii’s website here.