Following an application by the surrogate parents of a child, for a parental order, made outside of the time limit, the Family Division held that section 54(3) of the Human Fertilisation and Embryology Act 2008 did not have the effect of preventing the court from making an order.

Re X (A Child) (Surrogacy: Time limit): Family Division, Birmingham District Registry: 3 October 2014 (Sir James Munby P)

Surrogacy agreement made between applicants and couple in India – Surrogate couple treated as parents of child – Child returning to UK – Commissioning parents unaware of need to apply for parental order – Applicants applying for parental order outside statutory six-month time limit

Section 54(1)(c) of the Human Fertilisation and Embryology Act 2008 (the 2008 act), so far as material, provides that in certain specified circumstances: ‘the court may make an order providing for a child to be treated in law as the child of the applicants (a parental order) if… the conditions in subsections (2) to (8) are satisfied.’ So far as material section 54(3) stated: ‘the applicants must apply for the order during the period of six months beginning with the day on which the child is born.’

B and P, respectively ‘the commissioning father’ and ‘the commissioning mother’, married in 1998. In 2011, they made a surrogacy agreement in India with G and R, respectively ‘the surrogate mother’ and ‘the surrogate father’. The surrogacy agreement was valid under Indian law and under Indian law the surrogate father and the surrogate mother, being married, were treated as the child’s (X) parents to the exclusion of both the commissioning father and the commissioning mother.

The surrogate mother conceived using eggs donated by a third party and the commissioning father’s donor sperm. X was born in India in December 2011. In 2013, X entered the UK on a British passport. By that date, the six-month period under section 54(3) of the 2008 act had already elapsed. The reason was that the commissioning parents had been unaware of the need to apply for a parental order, let alone of the terms of section 54 of the act.

In August, the surrogate parents confirmed, in separate written documents, that they wished to relinquish all their parental rights and responsibilities in respect of X. In December 2013, they confirmed that their wishes and feelings about relinquishing parental rights and responsibilities remained the same.

What the commissioning parents wanted, and what on the face of it X’s best interests plainly demanded, was an order permanently extinguishing all the legal rights and responsibilities of the surrogate parents, and permanently vesting all such rights and responsibilities in the commissioning parents.

The main issue was whether the court had jurisdiction to make such an order if the application was made after the expiration of six months. Hitherto, the common belief had been that the court could not make such an order unless the application had been made within the six-month period. Consideration was given to the European Convention on Human Rights and Howard v Bodington (1877) 2 PD 203 (Howard).

The court ruled: section 54(3) of the 2008 act, did not have the effect of preventing the court making an order merely because the application was made after the expiration of the six-month period. That was a conclusion which the court came to on a straightforward application of the principle in Howard. The same conclusion was amply justified having regard to the convention (see [57], [58] of the judgment).

In the present case, the commissioning parents were to be allowed to pursue an application made some two years and two months after X was born. The court did not intend to lay down any principle beyond that which appeared from the authorities. Every case was fact specific.

In the circumstances of the case, the application should be allowed to proceed. No one, not the surrogate parents, not the commissioning parents, not the child would suffer any prejudice if the application was allowed to proceed. On the other hand, the commissioning parents and the child stood to suffer immense and irremediable prejudice if the application was halted in its tracks (see [62], [65] of the judgment).

Thee court would make the parental order as sought (see [78] of the judgment).

A v P [2011] All ER (D) 99 (Jul) considered; A v P (Surrogacy: Parental Order: Death of Application) [2012] 2 FLR 145 applied.

Elizabeth Isaacs QC and Matthew Maynard for X; Tracy Lakin for the commissioning father; Dympna Howells for the commissioning mother; The surrogate mother and the surrogate father were neither present nor represented.