A same sex couple have been made the legal parents of two children born to a surrogate mother.
In Re JV, the children were born in the United States before the couple brought them back to the UK. The couple then applied for a parental order in relation to both children. These orders are necessary when babies have been born using a surrogate. Under English law, the woman who gave birth to the child is regarded as their legal mother prior until a parental order is made.
Mrs Justice Theis explained that, under section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA), certain criteria have to be met before such an order can be made.
These criteria include the requirement for a biological connection between one of the applicants and the children. The judge noted that DNA testing had proved that one of the couple did have such a connection, as his sperm had been used for the pregnancy.
Another criteria Mrs Justice Theis cited was the need for the couple to have an established relationship. As they had been in a civil partnership since 2009, they satisfied that requirement.
She added that the HFEA also requires that at least one of the applying parents must live in the UK. Although one of the partners was French, he had moved to the UK for work, cut all financial ties with France and planned to live in the UK indefinitely.
The judge said that another necessary criteria was that the court must be satisfied that “no money or other benefit (other than for expenses reasonably incurred) has been given” during the surrogacy agreement, as commercial surrogacy is illegal in the UK. She noted that the surrogate mother had received just over £19,000 over the course of her pregnancy, but ruled that the amount did not “attract the attention of the court as being too high or too low”.
Finally, Mrs Justice Theis turned to the issue of the children’s welfare, which must be the “paramount consideration of the court” according to the Adoption and Children Act 2002. The judge said that the children were “contented, much loved and well cared for” by the couple.
She concluded that the children’s “lifelong welfare needs can only be met if their legal relationship with the applicant is secured in a lifelong way”, so she granted the couple’s application for a parental order.
To read the full judgment, click here.
Photo by Michael Verhoef via Flickr