A & Anor v P & Ors

A parental-order application validly made by two commissioning parents may survive the death of one applicant before the order. The statutory conditions requiring the child’s home to be with the applicants and both applicants to be adults may, in exceptional circumstances, be construed compatibly with family-life and identity rights.

That construction is permissible where it fulfils the statutory policy, does not enable applications by single commissioning parents or minors, and alone gives the child equal legal recognition as the child of both applicants. Once the statutory requirements are satisfied, the child’s welfare is paramount. The court may also authorise payments exceeding reasonable expenses where the applicants acted in good faith and the payments did not overbear the surrogate mother’s will.

A married couple entered a lawful surrogacy arrangement in India. The child was genetically related to the husband and might also have been genetically related to the wife. After they had jointly applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, the husband died before the application was determined.

The court had to decide whether the application survived his death and whether the requirements concerning the child’s home and the applicants’ ages could still be satisfied. It also considered whether to authorise payments to the surrogate mother which probably exceeded reasonable expenses, and whether the child’s welfare required a parental order.

1. Parental order made. The application survived the husband’s death. A parental order is essentially declaratory and confers a fundamental status on the applicants and child. Its welfare considerations concern the child. The application was therefore distinguishable from a property claim whose determination depended upon comparing the parties’ needs at the hearing.
2. The requirements in sections 54(4)(a) and 54(5) of the Human Fertilisation and Embryology Act 2008 could be construed so that the valid joint application remained capable of determination after one applicant’s death. No alternative order or combination of orders would recognise the child’s relationship with both commissioning parents equally or produce the same transformative legal effect.
3. Article 8 of the European Convention on Human Rights was engaged because family life had existed between the child and both applicants. Refusing the order would leave the child without a legal relationship with his deceased biological father and would fail to match his legal identity to family reality. That interference was unjustified where a parental order alone could provide equal recognition. The construction also protected the child’s identity and family relationships consistently with article 8 of the United Nations Convention on the Rights of the Child.
4. The construction remained faithful to Parliament’s policy. Both applicants were married adults and lawfully entitled to apply when the proceedings began. The decision did not permit a person acting alone to commission a surrogacy arrangement or enable an order in favour of an applicant under 18. The child had lived with both applicants until the husband’s death and thereafter remained with the wife.
5. The payments to the surrogate mother probably exceeded expenses reasonably incurred. The court nevertheless authorised them retrospectively under section 54(8). The applicants had acted in utmost good faith, and neither the amount nor the circumstances had overborne the surrogate mother’s will.
6. Under section 1 of the Adoption and Children Act 2002, as applied to parental orders, the child’s welfare was paramount. The child was happy, secure and bonded with the surviving applicant and the extended families. His welfare clearly required the parental order.

not stated in the judgment.