In a case involving a Parental Order (“PO”) application earlier this year, X (A Child) [2018] EWFC 15, which involved the surrogate child of a married couple in a platonic relationship, the President of the Family Division, Sir James Munby, again showed the flexibility the court is, sensibly, willing to give when making important decisions about the legal status of a child within its family.

The judge determined that a married couple who explained that their relationship was purely platonic, and who lived in separate homes, satisfied Sections 54(2) and (4) of the Human Fertilisation and Embryology Act 2008 (“HFEA”) which provide that:

  • The applicants for a PO must be: (a) husband and wife, (b) civil partners or (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
  • At the time of the application and the making of the order the child's home must be with the applicants.

In an earlier blog, Surrogacy and separation – when relationships break down during the surrogacy journey, Connie reviewed a case which allowed a PO for separated parents and she asked whether the outcome would have been the same had the couple not been married. In A and B (Parental Order) 2015 EWHC 1738 (Fam), the twins born through a surrogacy arrangement were found to be living with both parents (in accordance with s54(4) HFEA) in circumstances where they stayed with the intended mother and spent time (but not overnight) with the intended father. This flexible approach to the interpretation of the HFEA was undoubtedly in the children’s best interests but the same question comes to us now: would the absence of a marriage or civil partnership cause a problem? For example, can you have a platonic enduring family relationship and would the court scrutinise this more closely in the absence of a marriage or civil partnership? Strictly speaking, the parents in X (A Child) above satisfied s54(2) (that they be married) and it seems therefore that the subsistence or nature of their marriage and their living apart mattered less. However, we have not seen a case in which an unmarried couple (platonic or otherwise) have separated or live apart and asked the court for a PO.

It may be that this particular question matters less because we are due to see an amendment to the HFEA to allow single applicants to apply for a PO. If, however, as the guidance currently suggests*, the new legislation should not be used by single applicants who are married, in a relationship or where there is another intended parent (as they are encouraged to make an application as a couple in the usual way), the question of whether unmarried separated applicants can apply for a PO cannot be ignored completely.

If you are an unmarried couple who have embarked on a surrogacy journey together and your relationship is like those in X (A Child) above, or you enjoyed a full sexual and romantic relationship but have since separated, it is not clear whether the court would provide the same flexibility and make a PO. We hope that it would but would s54(2) HFEA strictly be satisfied?

If the court is willing to show flexibility in this way, how far can the interpretation of an enduring family relationship in accordance with s54(2) HFEA go? Is a family relationship a couple who live together as partners (it seems that this is not necessarily so according to the X (A Child) decision above) or simply two people who have decided to have a family together? If so, this could be important for those who (although rare) do not have a romantic relationship or marriage but have decided to raise a child together. Could we see a situation where two friends, who have chosen to have a child together using a surrogate, argue that this is their enduring family relationship; as parents not as partners? Again, the ability for single parents to apply will not assist the couple here if legal parentage needs to be conferred on both but under the new legislation would only be determined for one of them.

Perhaps this is another reason why a whole scale reform of our surrogacy law is needed and, thankfully, is due to take place as the Law Commissions of England and Wales and Scotland have received government backing and funding to do so – see HERE for details.