A & B (Children) (Surrogacy: Parental orders: time limits)

The six-month period in section 54(3) of the Human Fertilisation and Embryology Act 2008 is directory, not an absolute bar. The court may permit a late application for a parental order where the statutory conditions are met and the particular facts justify an extension.

The child’s welfare throughout life is the paramount consideration. Public policy concerns remain relevant, but a parental order should be refused on that ground only in the clearest case of abuse of public policy. Where a child was intended, conceived and raised as the commissioning parents’ child, a parental order may better protect identity, family life and lifelong welfare than adoption.

D and G applied for parental orders concerning two children born in California through gestational surrogacy in 2006 and 2009. The applications were made between five years and five months and eight years after the births. The applicants had initially sought adoption orders because they had been advised that section 54(3) of the Human Fertilisation and Embryology Act 2008 imposed an inflexible six-month limit.

The surrogate and her husband consented, and the children’s guardian supported parental orders. The central issues were whether the applications could proceed out of time, whether payments made under the Californian arrangements could be authorised, and whether parental orders or adoption orders best served the children’s lifelong welfare.

1. Late applications. Following Re X [2014] EWHC 3135 (Fam), section 54(3) of the Human Fertilisation and Embryology Act 2008 was construed as a direction rather than a mandatory deadline. The court could extend the period where the facts justified doing so. Each case remained fact-sensitive.
2. Welfare and public policy. The children’s welfare throughout their lives was the paramount consideration under section 1 of the Adoption and Children Act 2002, as applied by the 2010 Regulations. The public policy concerns identified in Re X and Y (foreign surrogacy) [2008] EWHC 3030 (Fam) and Re S (parental order) [2009] EWHC 2977 (Jud) remained relevant, but, applying Re L (a minor) [2010] EWHC 3146 (Fam), refusal was justified only in the clearest case of abuse of public policy. The applicants had acted in good faith, had not sought to circumvent child-protection laws, and the payments were not disproportionate.
3. Statutory criteria. The requirements of section 54, apart from the timing issue and payment authorisation, were satisfied. The applicants were married, domiciled in the United Kingdom, over 18, and had provided the children’s home. The surrogate and her husband had given valid consent.
4. Parental orders rather than adoption. Parental orders were the bespoke statutory remedy for children born through surrogacy. They better reflected the children’s biological and social identity, their established family life and their lifelong welfare than adoption orders. Adoption would inaccurately suggest a change of family and could fail to provide adequate recognition of identity and family ties under article 8 of the ECHR.
5. Disposition. The applications were allowed despite the substantial delay. The court made parental orders in respect of both children and retrospectively authorised payments under section 54(8).