JP v LP & Ors (Rev 1)

Where an informal surrogacy arrangement has not been regularised by a parental order or adoption, legal parenthood and parental responsibility follow the statutory scheme, even if the commissioning adults have acted as the child’s parents.

The six-month period for applying for a parental order under Human Fertilisation and Embryology Act 2008, s54(3), is mandatory and cannot be extended through the inherent jurisdiction. A residence order may confer parental responsibility on a psychological parent, but it does not confer legal motherhood. In exceptional circumstances, wardship, a shared residence order and directions regulating parental responsibility may provide a practical protective framework.

The proceedings concerned a child born through an informal partial surrogacy arrangement. The surrogate mother was the child’s legal mother, while the commissioning father was the genetic and social father. The commissioning mother was the child’s psychological mother but had no legal parental status.

The parties had failed to issue a parental-order application within the statutory six-month period. Adoption and special guardianship were unsuitable or unavailable. The court was required to determine how the child’s care and the exercise of parental responsibility should be regulated between the three adults.

1. Parental order. The application could not proceed because it was issued outside the six-month period required by Human Fertilisation and Embryology Act 2008, s54(3). The provision contains no discretion to extend time, and neither the inherent jurisdiction nor another procedural device could circumvent the statutory limit.
2. Legal status. Under s33(1), the surrogate mother remained the child’s legal mother and retained parental responsibility. The commissioning father was the legal and genetic father. The commissioning mother had no legal status beyond her emotional and social role unless parental responsibility was conferred by another order.
3. Alternative orders. Adoption could not provide an appropriate solution. Adoption by the commissioning mother alone would extinguish the father’s parental responsibility, while joint adoption was unavailable because the adults were no longer married and were not living as partners. A special guardianship order could also give the commissioning mother power to act to the possible exclusion of the father.
4. Protective framework. A shared residence order under s8 Children Act 1989 conferred parental responsibility on the commissioning mother but did not make her the legal mother. Given the wholly exceptional circumstances, the court approved wardship, shared residence, joint delegation of parental-responsibility issues to the commissioning mother and father, and a prohibition on the surrogate mother exercising parental responsibility without leave of the court.
5. The judgment emphasised the serious legal and practical risks of informal surrogacy arrangements undertaken without regulated clinical services, counselling and specialist legal advice.