The judgment in AB and CD and CT  EWFC 12 (“AB and CD”) was given in February and provides a further of example of the court’s willingness to use its discretion to provide security for children born out of surrogacy arrangements.
In a previous blog, “Progress for parents and surrogate children in the UK: Parental order time limit extended”, we wrote about the first reported case in which the court allowed the making of a parental order in circumstances where the application was made outside of the six month time limit Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam). The limit is provided for at section 54(3) of the Human Fertilisation and Embryology Act 2008 and has until recently been strictly applied by the English courts. Applying the outcome of Re X, the Judge in AB and CD allowed the making of a parental order despite the application being made more than two years out of time.
The background to AB and CD
The intended parents in AB and CD were civil partners who were born in Britain but lived for a period of time in Australia (and obtained Australian citizenship). During their time in Australia, they decided to start a family and entered into a surrogacy arrangement with an Indian surrogate. The surrogate became pregnant with twins who, immediately following their birth, were placed in the care of AB and CD. AB and CD met the surrogate mother ten days following the birth and she also signed an affidavit confirming she had no objection to the children remaining in their care and returning to Australia with them. Once in Australia, the parents made applications for parenting orders, which are similar to child arrangements orders in this country. One of them, AB, was genetically linked to the twins and also made an application for a declaration of parentage to confirm his status as a legal parent.
The Australian proceedings were served on the surrogate mother and parenting orders were granted.
In late 2013, AB and CD moved back to the UK. They applied for British passports for the twins on the basis that they were British by descent as AB was their biological and legal father. The applications were refused on the basis that the Home Office did not consider that sufficient evidence had been provided that the surrogate mother, who had been married previously, was divorced at the time the surrogacy agreement was entered into. Although the parents made enquiries through the clinic in India (with a view to obtaining further evidence about the surrogate’s circumstances), they instead decided to make applications for their children’s discretionary registration as British Citizens. The discretionary registration applications were successful.
Following their arrival in the UK, the parents sought advice regarding their legal relationship with the children and made a joint application to adopt them. Shortly after this, however, in October 2014, they were advised of the decision in Re X and the possibility of applying for a parental order out of time (rather than adoption). The adoption proceedings were halted and parental order applications issued within a few days of Re X being reported.
At a directions hearing in November, Mrs Justice Theis gave directions for further enquiries to be made of the surrogate mother who had no knowledge of the English applications for adoption or parental orders. Although the Indian clinic and the surrogacy agency made various attempts to locate the surrogate she could not be found.
Potential bars to the parental order being made
The time period within which AB and CD should have made their parental order application in England was six weeks after the twins’ birth, but before the expiry of six months (section 54(3) HFEA 2008). AB and CD were in Australia at the six month time limit although they had made their Australian applications by that time.
The application before the English court was made in October 2014; almost two and a half years’ out of time. Mrs Justice Theis considered the case of Re X and in particular the passage that “the court is concerned [… ] with the impact on the innocent child, whose welfare is the court’s paramount concern. […] the court is entitled [...] to adopt a more liberal and relaxed approach”. The Judge in AB and CD did not consider that the surrogate, who had not had any involvement with the children since 2011, would suffer any prejudice if the parents’ application was allowed out of time. On the contrary, the Judge felt that the applicants and their children would suffer prejudice if the parental order was not made and she concluded that, despite the delay, the section 54(3) criteria had been met.
The surrogate mother’s consent
The surrogate mother had participated in the Australian proceedings and signed an affidavit in January 2012 (three months after the twins’ birth) consenting to the parenting orders. She had no involvement in the English proceedings but AB and CD sought to rely on the January 2012 affidavit as evidence of her consent. This was rejected by the Judge, who highlighted that the consent given by the surrogate in 2012 related to the Australian orders and not to parental orders in England, which have the effect of extinguishing her status as the legal parent of the twins.
The Judge therefore went on to consider the exception in section 54(7) of HFEA, which allows the making of a parental order in the absence of the surrogate’s consent. Using historic case law as guidance, Mrs Justice Theis found that the parents had taken all reasonable steps to obtain the surrogate’s consent. The Judge concluded that any further delay in coming to a decision about the making of a parental order would be contrary to the children’s welfare and concluded that the surrogate’s consent to the English application was not required as she could not be found.
The Judge’s concluding remarks:
“I am clear in this case the welfare of each of these children requires a parental order is made, which is the order I shall make.”
Where to from here?
While no doubt surrogacy cases will continue to be decided on a fact specific and case by case basis, the decisions in Re X and AB and CD have marked a significant change to the court’s approach. It seems that, in the right circumstances, the court will be willing to use its discretion when considering the strict provisions of the Human Fertilisation and Embryology Act 2008, which governs the making of parental orders.
Having said that, parents considering entering into a surrogacy arrangement should not dismiss the importance of the provisions of the Act or assume that their parental order can be obtained easily. Commissioning parents should take specialist surrogacy advice at an early stage, ideally before identifying a surrogate or entering into any formal agreement. If parents are not living in England and Wales but have ties here and have considered returning here with their children in the future, advice should be sought in England about making a parental order application without delay (even if the parents are still living abroad with the child). It is also important to establish clear lines of communication with the surrogate mother as she (and her husband if married) will need to be served with the English parental order application and will need to give consent to the making of the order after the child’s birth, by which time the child will invariably have already been placed in the care of the commissioning parents.