A (A Child : Surrogacy: S.54 Criteria)

The statutory criteria for a parental order under Human Fertilisation and Embryology Act 2008, s 54, require a purposive and Convention-compliant interpretation. A late application is not automatically fatal. The court must assess the statutory purpose, the importance of the requirement, and the consequences of non-compliance.

The requirements that the child’s home be with the applicants and that the applicants live as partners in an enduring family relationship are questions of fact and degree. Parents need not live together under the same roof. Separation is not itself fatal where there is an enduring commitment to the child and a factual relationship consistent with family life. The child’s welfare interests and the transformative effect of a parental order are of central importance.

The child was born in February 2017 following a surrogacy arrangement using the gametes of the first and second applicants. The first applicant initially applied alone for a parental order, but that application was stayed because the legislation did not then permit a single applicant to apply. Following the introduction of s 54A of the Human Fertilisation and Embryology Act 2008, the stay was lifted. The applicants subsequently made a joint application.

The application was made more than two years after the six-month statutory period. The applicants had separated and lived in different homes, raising questions under s 54(2)(c) and s 54(4)(a). The central issues were whether those criteria could be satisfied on a purposive and Convention-compliant interpretation and whether a parental order was in the child’s welfare best interests.

1. Parental order made. The court made a parental order in favour of both applicants. It was overwhelmingly in the child’s welfare best interests and was the only order that would recognise both applicants as his legal parents.
2. The six-month period in s 54(3) is not an absolute bar. Applying the principles in Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam), the court must consider the statutory subject matter, background, purpose and importance of the requirement, its relation to the statutory objective, and the actual or possible consequences of non-compliance. Treating the delay as fatal would produce a senseless result and deprive the child of the benefits of a parental order.
3. Under s 54(2)(c), whether applicants are living as partners in an enduring family relationship is a question of fact and degree. The relevant considerations include an unambiguous intention to create and maintain family life and a factual matrix consistent with that intention. The parents’ separation did not prevent the requirement being satisfied.
4. The word “home” in s 54(4)(a) must receive a wide and purposive interpretation. The requirement does not demand that the applicants live together. The child may have his home with separated parents where both are committed to his care and future welfare.
5. Section 3 of the Human Rights Act 1998 requires, where possible, a Convention-compliant interpretation. The child’s Article 8 and Article 14 rights were engaged. Biological and social reality should prevail over legal presumption, and the child’s welfare interests have primacy.
6. The court was satisfied that all statutory requirements were met on the facts. The parental order had a transformative effect on the child’s identity and status throughout his life.

First-instance decision. No prior appellate decision is stated in the judgment.