XW (Parental Order: Death of An Applicant), Re

Where one intended parent dies after a parental-order application has been made, the court may interpret the statutory requirements purposively so that the order reflects the child’s established family and biological identity. The child’s welfare remains paramount, and the court must respect family and private life under article 8. The death of an applicant does not necessarily prevent the court from treating the child’s home as having been with both applicants at the relevant times. The court may retrospectively authorise proportionate and lawful surrogacy payments where doing so is consistent with the child’s welfare and public policy.

M and F applied under section 54 of the Human Fertilisation and Embryology Act 2008 for a parental order concerning a child born through gestational surrogacy in Nigeria. F died after the application was issued but before determination. The court therefore had to decide whether the statutory requirements concerning the child’s home, domicile and consent remained satisfied, and whether a parental order could properly be made in favour of M and F posthumously.

The surrogate was notified and confirmed her continuing consent. The central issue was whether F’s death altered the application of section 54 sufficiently to prevent an order recognising the child’s relationship with both intended parents.

1. Parental order made. The court was satisfied that the statutory criteria in section 54 of the Human Fertilisation and Embryology Act 2008 were met and that the order accorded with XW’s lifelong welfare.
2. The requirement concerning the child’s home was interpreted purposively. XW’s home had been with both applicants when the application was made, and F’s death did not prevent recognition of the family life established before his death. A parental order was necessary to reflect the child’s biological and social identity and to recognise him legally as the child of both intended parents.
3. The court accepted that article 8 required respect for the child’s family and private life. That obligation supported an interpretation of section 54 which avoided an outcome inconsistent with the statutory scheme and the child’s identity. An adoption order or a parental order in favour of M alone would not adequately reflect XW’s life story.
4. The domicile requirement was satisfied because M had acquired a domicile of choice in England. Her long residence, indefinite leave to remain, established home and intention to remain and raise XW here were sufficient. It was unnecessary to determine the more complex question of F’s domicile.
5. The surrogate’s consent remained valid. Her notarised A101A consent complied with paragraph 13.11(4)(c) of the Family Procedure Rules 2010, and her later confirmation showed that consent continued despite F’s death.
6. The payments made in connection with the surrogacy were lawful in Nigeria, proportionate and consistent with the agreement. They did not offend public policy and were retrospectively authorised under section 54(8).
7. The child’s welfare required permanency and security, together with recognition of his parentage and identity. The court therefore made a parental order to M and F.