A British same sex couple have been granted parental responsibility for a surrogate child despite a legal deadline having passed.
In AB v CD, the couple had been together since 2001. They entered a civil partnership in 2007, later moving to Australia and gaining citizenship. Despite this, Mrs Justice Theis noted at the Family Court in Brighton, “they always intended to return to live in this jurisdiction.”
The couple decided to start a family via surrogacy and entered an arrangement with a clinic in New Delhi. The prospective surrogate mother was referred to as ‘CT’ in the judgement. She was made to sign a lengthy surrogacy agreement, but doubts were cast over whether or not this had been properly translated for her before she signed it using a thumbprint.
CT fell pregnant with twins and they were born in October 2011. Following the birth, the mother signed an affidavit confirming that she had no objection to the couple taking on care of the children or to them being taken back to Australia. A DNA test confirmed that one member of the couple was the children’s biological father as expected.
The couple travelled back to Australia with the children. The twins were granted citizenship and passports. The men then set out to formalise their relationship with the children. The biological father, ‘AB’, applied for a declaration of parentage and they made a joint application for the Australian equivalent of child arrangements orders, which set out living arrangements for the youngsters involved.
In 2013, the couple decided to move back to the UK and applied for British passports for the twins. According to the judgement, the men expected this application to be granted on the basis of their own British citizenship as AB had been established as the children’s legal and biological father. But their application was refused as they could not prove that CT, the biological mother, had not been married during the surrogacy arrangement. Under English law, the birth mother is the legal parent of surrogate children unless this is specifically revoked.
The pair presented an affidavit but this not regarded as sufficient evidence as it was, the British authorities stated, culturally unlikely that CT would be single. The surrogacy clinic said there was no paperwork available to verify the divorce because the woman had lived in a rural area.
The couple changed tack, applying instead for a discretionary award of British citizenship for the children, based on the circumstances, and this was granted. The family returned to the UK in April last year.
Once back in England, the couple sought legal advice, concerned that the CT’s legal relationship with the children was uncertain given their inability to verify her divorce. In addition, the second partner in the couple, referred to as ‘CD’, had no legal relationship with the children. They therefore made a joint application to formally adopt the twins.
However, they later changed their approach again, deciding instead to apply for a parental order – a legal order transferring the status of parent from the biological mother. Under normal circumstances such orders can only be made within six months of the child’s birth. However, in the case of Re X last year, Sir James Munby said such orders could be made after the deadline if it was in the child’s best interests to do so.
The couple argued that a parental order:
“…would reflect the reality legally of the family we had created. AB is the children’s biological father and [it] has never seemed right that he would have to adopt them to make sure that we both had equal legal status as their parents.”
Mrs Justice Theis ruled in their favour, saying:
“I agree a parental order and the consequences that flow from it are, from a welfare perspective, far more suited to surrogacy situations. They were specifically created to deal with these situations. Put simply, they are a more honest order which reflects the reality of what was intended, the lineage connection that already exists and more accurately reflects the child’s identity.”
Read the judgement here.