DM and LK, Re

For a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, the statutory conditions must be assessed in the circumstances of the particular family. Applicants may be living as partners in an enduring family relationship even if work or childcare responsibilities require them to maintain separate homes. A child may have her home with both applicants despite spending periods in one applicant’s separate household. Where necessary, the statutory language may be read down compatibly with article 8 of the Convention. Consent remains free and fully informed where the respondents understand the relevant history, have had time to reflect, and continue to support the order. The child’s lifelong welfare is paramount under the Adoption and Children Act 2002.

DM and LK applied for a parental order concerning X, born following a surrogacy arrangement involving SJ and OJ. The embryo transferred to SJ had been created using the gametes of DM and LK, but the change from the arrangement previously discussed with SJ and OJ was not disclosed before transfer. The respondents later gave written consent after receiving the relevant information and participating in discussions facilitated by the parental order reporter.

The principal issues were whether DM and LK satisfied the relationship and home requirements in section 54, whether consent was free and fully informed, whether payments made to the surrogate couple were limited to reasonably incurred expenses, and whether the order served X’s lifelong welfare.

1. Parental order made. The requirements in section 54 of the Human Fertilisation and Embryology Act 2008 were satisfied.
2. Whether applicants are living as partners in an enduring family relationship is a question of fact. DM and LK were in a committed relationship, intended to remain together, jointly intended to raise X, and spent as much time together as their responsibilities permitted. Separate homes and periods of separate residence did not prevent the requirement being met.
3. X’s home was with both applicants at the relevant times. DM’s need to divide his time between households did not alter that conclusion. Alternatively, family life existed between the applicants and X for article 8 purposes, and the statutory provision could be read down where necessary to achieve a Convention-compatible result. The court relied on Re X (A Child) (Parental Order: Time Limit) [2014] EWHC 3135 (Fam), A & B (No 2—Parental Order) [2015] EWHC 2080 (Fam) and Kroon and Others v the Netherlands [1994] ECHR 35.
4. The respondents’ consent was free and fully informed. They knew that the genetic information had initially been withheld, had time to reflect, and consistently understood and supported the effect of the consent.
5. The £13,000 paid to the respondents was for expenses reasonably incurred as a direct result of the pregnancy. The payment condition was therefore met.
6. X’s lifelong welfare was the paramount consideration under section 1 of the Adoption and Children Act 2002. A parental order was a transformative order designed for surrogacy arrangements and met X’s lifelong welfare needs.
7. The court expressed serious concern about the failure to disclose the change in genetic material before transfer and emphasised the need for complete transparency before significant steps in a surrogacy arrangement. The respondents’ consent meant that no further determination of that issue was required.