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Couple made legal parents after decade-plus delay

The Family Court has named a British couple the legal parents of three children born via surrogacy agreements over ten years ago.

All three children were born to the same surrogate in the United States, the first in 2002 and the younger two, a pair of twins, in 2004. Their parents obtained all the necessary documents to be their legal parents in the US but not in the UK.

Under the Human Fertilisation and Embryology Act 2008 (HFEA), couples must be granted a parental order before they are recognised as the legal parents of any children born via surrogacy agreements. Section 54 of the HFEA states that such couples “must apply for the order during the period of 6 months beginning with the day on which the child is born”.

Unfortunately for the couple in this case, they did not know a UK parental order was required nor did they realise they had a six month window to apply for one. They would not have found out had it not been for “a chance reading of an article … in a Sunday newspaper” back in February. Once they became aware, the couple applied for a parental order as soon as they could.

Mrs Justice Theis declared that apart from the delay in applying the couple met all the criteria listed in the HFEA. The judge was concerned that allowing the order could “discourage commissioning parents in surrogacy arrangements from making applications for parental orders promptly”, but said another consideration was more important.

The law states that the “paramount consideration of the court must be the child’s welfare” in surrogacy cases and the judge had “no doubt” that parental orders were in the best interests of all three children. She approved the couple’s application and said they would now have parental responsibility for all of their children under English law.

Following this decision, Mrs Justice Theis noted that the parents had asked for the judgment to be publicly available. The couple wanted to “ensure that other people in the same position as them are encouraged to make [the necessary] applications”. It was important that such steps are taken because parents who do not can experience complications later on, she said.

Read A & Anor v C & Anor here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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