High Court awards parenthood for international surrogacy children – 8 and 5 years after they were born

The children were born through ‘carefully regulated legally binding commercial surrogacy contracts‘ in California in 2006 and 2009, using the British father’s sperm and eggs from a donor.  Pre-birth US court orders made the British parents the legal parents in California, but under UK law (where the surrogate and her husband are the legal parents) the British couple were legally strangers to their own children.  It was not until 2012 that the parents discovered they were not in fact the legal parents of their children.  The lack of status meant the parents had no legal rights to make parenting decisions in the UK, the children were not British, and the children had no right to inherit from them or to financial protection if they separated.

Having missed the opportunity to apply for a parental order (which ‘must’ be applied for within six months of birth), the parents contacted us for help and initially applied to adopt the children.  However, in October 2014 the President of the Family Division permitted a late parental order application in another case for the first time, opening the possibility that these children might still be given UK birth certificates.

Representing the parents, we asked the court for parental orders notwithstanding quite how far past the six month deadline we were.  Both parents gave compelling evidence about what parental orders would mean to them and their children. They had always been open and honest about the circumstances of the children’s conception; the children knew they had been conceived with the help of an egg donor and surrogate half way around the world.  Adding an adoption ‘sub clause’ was inappropriate and would undermine the children’s strong existing sense of identity as the children of this family.

Giving judgment, Ms Justice Russell said that it would be ‘manifestly unjust‘ for the six month deadline to be given greater weight than the welfare of the children, and that adoption orders did ‘not befit children born through surrogacy‘. Parental orders were, she said, nthe solution tailor-made by Parliament for surrogacy, and would give the children birth certificates, which reflected their established identity and protected their rights in line with other children born through assisted reproduction.  Adoption, in contrast, was a square peg for a round hole.

The decision is important, not only in awarding parental orders  significantly later than has ever been done before, but because it is clear the court will now only refuse late applications if the case represents ‘the clearest abuse of public policy‘. As with the rules on payments, the child’s welfare takes priority over the statutory rules.

Most significant, though, are Ms Justice Russell’s wider comments about the rights of surrogate children to have their identity as the natural children of their parents fully recognised.  She said:

In terms of their identity, only parental orders will fully recognise the children’s identity as the applicants’ natural children, rather than giving them the wholly artificial, and in their case inappropriate, status of adopted children. The applicants were their planned and intended parents from before conception and since the day on which they were born. All of these facts, fundamental to these children’s very existence and identity, are far from those present in adoption. To make adoption orders would effectively deny adequate recognition of the applicants’ and children’s identity and their right to family life under article 8 ECHR, particularly their established identity, their biological and social ties. There is no doubt in this case that as far as these children are concerned their identity has already been formed as the biological children of their father and the commissioning of their conception and birth involving their mother. The parental order, therefore, better meets the children’s ‘lifelong’ welfare, and involves a whole of life perspective extending, not just forward, but also retrospectively from birth until death.

We are delighted for the parents, who have finally received British birth certificates for their children confirming the parentage which has, in every real sense, existed since their children’s conception. And we are delighted for their children, whose status as their parents’ natural children has been fully recognised in their home country.

But there are wider questions.  The judgment is a just and sensible one from a court which sees the realities of surrogacy every day.  But it highlights – yet again – the shortcomings of UK surrogacy law.  Although this case has a happy ending, the fact remains that UK law left these much-loved children legally parentless for the first 8 and 5 years of their lives. With so many UK parents driven overseas to access professional surrogacy services not available in the UK, how many other UK children born through international surrogacy are living in the same legal black hole? What will happen to them if their parents die or divorce before things are resolved?

As Ms Justice Russell observed, California has ‘considerable experience and a sound regulatory framework in surrogacy‘ which is ‘regretfully not available in the UK‘.  Her comments are timely, with Nick Clegg commenting to Pink News during the election campaign that the UK should perhaps consider California-style surrogacy laws.  Cases like this vividly show why UK law needs to resolve parenthood in surrogacy cases before a child is born, rather than after.  If, as Ms Justice Russell says, children born through surrogacy have a basic human right to be recognised as the natural children of the parents who conceive them, then surely that right exists from birth too.

This is the latest in a whole catalogue of cases to demonstrate just how inadequate current UK surrogacy law is.  How many more cases must there be before Parliament ensures that children are not born legally parentless?

Find out more about international surrogacy law and how we think UK surrogacy law needs to change.

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