Until now, intended parents could only apply to become legal parents within six months of the birth of their child. But in a key ruling today, the President of the High Court Family Division, Sir Justice Munby, has said that even though the law states that an application must be made before a child is six months old, the court can accept late applications. In powerful words, he has criticised the strictness of the law, saying:
“Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. I assume Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe the law as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.”
The case involved a child born through surrogacy in India. The British parents thought they were the legal parents (understandable given that they were registered as such on the Indian birth certificate) but in fact UK law did not recognise their parenthood, instead treating the Indian surrogate and her husband as the parents. This only came to light when the British parents later separated, and the family court handling their divorce realised that they had missed the mandatory deadline for applying for a UK parental order – the court order which reassigns parenthood in surrogacy cases.
Following previous cases, everyone thought that it was too late to ask the court for a parental order. But Elizabeth Isaacs QC, representing the child, argued that the court should be able to make a parental order notwithstanding the hard deadline. The President agreed, stressing how significant a parental order was for the child. He said: “[This] goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are… A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also in relation to the practical and psychological realities of X’s identity”.
The case is significant for the thousands of other surrogate children living with UK parents who are not their legal parents. Working at the coal face of international surrogacy, we are painfully aware that this is not an isolated case. Many parents do not properly address the legalities after surrogacy abroad (whether innocently or knowingly), and the long term consequences for their children are potentially grave, with looming problems over inheritance, guardianship, nationality, financial maintenance, medical decision-making and many other basic rights. We know there is a big gap between the numbers of parental orders being made (213 in 2012) and the numbers of children being born through surrogacy to UK parents (reportedly 1,000 cases per year in India alone). For children living in the black hole of unresolved legal status, today’s ruling is welcome because it means the door may not be closed to a remedy.
The case also demonstrates, yet again, just how out of date the UK’s surrogacy laws are. A framework which makes the surogate and her husband the legal parents and then reassigns parenthood after the event might have been good enough when there were only a handful of surrogacy cases, all in the UK. But in the age of widespread UK and international surrogacy, the law is creaking under the strain. Again and again the family court is having to stretch the law to breaking point, and it makes a mockery of the rules.
That is why we are campaigning for a system of pre-birth orders in the UK. We want children born through surrogacy to UK parents to have a secure legal identity within the right family from the moment of their birth. As this case shows, our current law is leaving children vulnerable and disenfranchised, and reform is long overdue.
You can read the full judgment from Re X (a child) (surrogacy: time limit)  EWHC 3135 (Fam) here.
You can also read Natalie’s interview with Lexis Nexis about the significance of the case, and why it shows we need legal change.
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