Platonic co-parents through surrogacy granted parental order in legal first – new NGA reported case

November 28, 2022

The High Court has awarded legal parenthood to two male co-parents with a child born through surrogacy in a new legal first.

NGA Law successfully represented the fathers in the case of X & Anor v B & Anor (2022) and we are delighted to have won legal recognition for this modern family.

What were the facts of this case?

The two fathers in this case were platonic co-parents: they were not living together and were not partners in the traditional sense.  One of the men was also married to (and living with) his wife.

They had a longstanding friendship and what they descibed as a ‘close and loving bond’. Since they shared a desire to become parents, they decided to conceive a child together.  Their son was born through surrogacy, with the benefit of wider family support – their surrogate was the biological father’s sister and their egg donor was the non-biological father’s niece. 

Their son was born in the US, and was co-parented between the the father’s homes in the UK and USA for the first three years of his life. The non-biological father’s wife was also supportive and had the role of a step-parent within their family. However, with school years looming the fathers wished to live closer together and applied for a parental order so that their joint parenthood could be legally secured in the UK.

What was the legal issue?

Where a joint application is made for a parental order, the court must be satisfied that the applicants are married, civil partners or ‘living as partners in an enduring family relationship’.  The question before the court was whether the definition could include fathers who were not in a relationship with each other, even though traditionally it had applied to couples.

What decision did the court make?

The court made a parental order in favour of the two fathers, making them their child’s legal parents under UK law, as well as regularising the child’s wider family relationships (for example making the surrogate the child’s legal aunt rather than his mother).

As we successfully persuaded the court, this was possible (reading the law with a broad and flexible view) since the law does not expressly require applicants for a parental order to be living together, or to be in an intimate relationship.  The two fathers in this case could meet the criteria of being ‘living as partners in an enduring family relationship’ on the basis they were co-parenting rather than intimate partners.

As Mrs Justice Theis said:

“To an outsider the nature of the applicants’ relationship may be described as ‘unusual’ or ‘unconventional’ but the court must remain focussed on the statutory requirements. In my judgment, the applicants are ‘living as partners in an enduring family relationship’. They are in a long term committed relationship with each other that has been in existence for a number of years. Whilst it is right Mr X has remained married and living with his wife, the existence of that relationship has not detracted from the evidence the court has of the way Mr Y and Mr X operate as committed and loving partners, particularly in relation to the way they have made the decision to have a child, the steps they have taken to do that and what they have done following G’s birth.”

The implications of the court’s decision

The decision is an important one because it demonstrates the capacity of the family court to respond to new family forms, and to make orders which recognise children’s realities even if they are born in unconventional family structures.

As we know very well at NGA Law, families are becoming increasingly diverse, but what matters to children is not the structure of their family but whether they are loved. The order made in this case recognises this child’s family as he experiences it: with two fathers, a step-mother and a big wider loving family which includes two very special aunts who helped bring him into the world. His family structure is now fully and appropriately recognised in law, as it should be.

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