KB & RJ v RT (Rev 1)

A parental order may be made despite an application being lodged outside the six-month period in Human Fertilisation and Embryology Act 2008, s 54(3), where a purposive construction and, if necessary, the interpretive obligation under s 3 of the Human Rights Act 1998 permit it. The child’s home may be construed flexibly where intended parents retain parental responsibility and the child is temporarily abroad because of immigration difficulties. An estranged spouse is not treated as the child’s father under s 35 where he neither knew of nor consented to the treatment. Payments made in good faith and without moral taint may be retrospectively authorised where they are not disproportionate or contrary to public policy.

The applicants, a married couple living in England, sought a parental order concerning J, born in India through a gestational surrogacy arrangement using the sperm of the first applicant and a donated egg. J remained in India with his paternal grandmother because immigration applications and a passport application had failed. The surrogate consented, but her estranged husband had not participated in or consented to the treatment.

The court considered whether the statutory conditions in s 54 of the Human Fertilisation and Embryology Act 2008 were met, including the late application, J’s home, the husband’s status, and payments to the clinic and surrogate. It initially deferred the final order to allow reconsideration of J’s entry clearance. Following his admission to the United Kingdom, the parental order was made.

1. Late application. The application was made approximately two years after J’s birth. Following Re X (Surrogacy; Time Limit) [2014] EWHC 3135 (Fam), and the reasoning in A v P [2011] EWHC 1738 (Fam), the court held that the six-month requirement in s 54(3) could be construed purposively. Alternatively, s 3 of the Human Rights Act 1998 permitted a compatible interpretation. The applicants had acted in good faith and refusal would cause serious and irremediable prejudice.
2. Child’s home. Section 54(4)(a) was satisfied. The concept of home required a flexible construction. Although J was temporarily living abroad, the applicants funded and directed his care, made decisions about his welfare, maintained daily contact, and had their settled family home and domicile in England. The approach in Re Z (Foreign Surrogacy) [2015] EWFC 90 was applied.
3. Surrogate’s husband. Applying Re G (Surrogacy: Foreign Domicile) [2007] EWHC 2814 (Fam) and AB v CD (Surrogacy; Time Limit and Consent) [2015] EWFC 12, the court found that the estranged husband had neither participated in nor consented to the treatment. He was therefore not J’s father under s 35(1).
4. Payments. The payments were comparable with those authorised in Re D and L (Minors Surrogacy) [2012] EWHC 2631 (Fam). Applying the principles identified in Re WT (A Child) [2014] EWHC 1303 (Fam), retrospective authorisation was appropriate. The applicants had acted with utmost good faith, without moral taint or attempted fraud, and the payments were not disproportionate or contrary to public policy.
5. After J obtained entry clearance and joined the applicants in the United Kingdom, the court made the parental order. It was overwhelmingly in his lifelong welfare interests and created a permanent legal parent-child relationship.

First-instance parental order proceedings. No appellate history is stated in the judgment.