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The Legal Framework: Parental Orders
The Legal Framework: Parental Orders
Notwithstanding the existence of the Californian parental order, in this jurisdiction B’s legal mother is Mrs Z and his legal father is Mr Z. Mr and Mrs K have no legal status in relation to B even though they have cared for him since birth. If the court makes a parental order, this will create a lifelong legal parental relationship between B and Mr and Mrs K and extinguish any legal relationship that B currently has with Mr and Mrs Z.
An application for a parental order made by two applicants is governed by s. 54 of the HFEA 2008. This provides that the court may make a parental order in respect of a child born through a surrogacy arrangement where (a) such an order meets the child’s welfare needs in accordance with s. 1 of ACA 2002 and (b) the following criteria are satisfied:
The child has been conceived artificially and is genetically related to one of the intended parents (s. 54(1)).
The intended parents are married, in a civil partnership or living as partners in an enduring relationship (s.54(2)).
The intended parents have applied for an order within six months of the child’s birth (s.54(3)).
At the time of the application and the making of the order, the child’s home has been with the applicants and at least one of the applicants is domiciled in the UK (s.54(4)).
The intended parents are over 18 years old (s.54(5)).
The surrogate (and her spouse, if applicable) has given her consent to the making of a parental order and that consent has been given freely, unconditionally and with full understanding of what is involved and that consent has been given more than six weeks after the birth of the child (s.54(6) and s.54(7)).
The surrogate has been paid no more than reasonable expenses, unless authorised by the court (s.54(8)).
The court must also have regard to the welfare checklist set out in s.1(4) of ACA 2002, this checklist (alongside the contents of s. 1 of ACA 2002) having been imported, with minor modifications, into the decision-making process pursuant to s.54 by the Human Fertilisation and Embryology (Parental Order) Regulations 2018. The checklist is as follows:
The child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding) (s.1(4)(a)).
The child’s particular needs (s.1.(4)(b)).
The likely effect on the child (throughout his life) of having ceased to be a member of the original family and becoming the subject of a parental order (s.1(4)(c)).
The child’s age, sex, background and any of the child’s characteristics which the court considers relevant (s.1(4)(d)).
Any harm (within the meaning of the Children Act 1989) the child has suffered or is at risk of suffering (s.1(4)(e).
The relationship which the child has with relatives, with any person who is a prospective carer with whom the child is placed, and with any other person in relation to whom the court considers the relationship to be relevant, including (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs, and (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child (s.1(4)(f)).
Finally, and relevantly in the context of this case, the court’s paramount consideration must be to the child’s welfare throughout his life (s.1(2)).
I have been guided by the observations made by the former President of the Family Division, Sir James Munby, in paragraph 54 of Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) as follows:
“A parental order has, to adopt Theis J’s powerful expression, a transformative effect, not just in its effect on the child’s legal relationships with the surrogate and commissioning parents but also, to adopt the guardian’s words in the present case, in relation to the practical and psychological realities of X’s identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424 at 429, referred to as the “psychological relationship of parent and child with all its far-reaching manifestations and consequences”. Moreover, these consequences are lifelong and, for all practical purposes, irreversible… And the court considering an application for a parental order is required to treat the child’s welfare throughout his life as paramount… Parliament has therefore required the judge considering an application for a parental order to look into a distant future.”