A small step has been taken towards improving surrogacy laws for intended parents and protecting surrogate children in this country.  Until recently, a six month time limit has been in place for parents to apply for a parental order in order to become the legal parents of a child in place of the surrogate mother. This requirement has long been criticised by surrogacy law specialists as there is no justification for an absolute deadline.

The conditions for making parental orders are set out in section 54 of the Human Fertilisation and Embryology Act 2008.  You can read all of the conditions here.  Under section 54(3) commissioning parents must apply for the order within 6 months of the child’s birth.  The legislation does not make any exceptions to this rule or allow for the time limit to be extended.

On 3 October this year, the President of the Family Division heard a case involving a child born in India, via a surrogacy arrangement, in 2011. The commissioning parents were unaware of the need to apply for a parental order within 6 months of the child’s birth and they did not do so.  Without a parental order, the surrogate mother is, and will remain, the legal mother of the child under English law, whether or not she is a genetic parent.  If she is married, the surrogate’s husband will be the legal father. 

In Re X (A Child) (Surrogacy: Time Limit) 2014 the President was faced with a situation where a child was being cared for by commissioning parents, neither of whom had parental responsibility for that child and the time limit for them to make a parental order application to resolve this legal dichotomy had passed.  The surrogate and her husband had confirmed that they wished to relinquish their parental rights and responsibilities.  It was clear to all that sense needed to prevail so that the child’s status, identity and relationships with its parents could be properly confirmed.  As the Judge himself asks “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?”

The Judge had to grapple with the wording of the 2008 legislation, the purpose behind it and arguments under the Human Rights Act. In this sensible and practical Judgment, the Judge extended the time limit for the parental order application to be pursued by the commissioning parents.

So what does this mean for other parents and surrogate children?  

The Judge is very careful to state that every case will be fact specific. However, intended parents who were not aware of the need to issue a parental order application following the birth of their child, and did not do so, would be well placed to seek legal advice and re-consider their ability to issue such an application now.  Many clients in the past have asked me, do I really need a parental order? The answer is a resolute “yes”. Without it, the intended parents are not the legal parents and have no legal standing to make decisions on behalf of their child (they do not have parental responsibility).  For example, without parental responsibility, intended parents are likely to experience problems when renewing their children’s passports. 

This case is good news for the thousands of parents involved each year in international surrogacy arrangements, particularly if they are stuck abroad unable to travel home immediately after birth or they were simply unaware of the need to issue a parental order application.