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Separated couple granted parental rights in surrogacy case

December 18th 2023

A couple who separated after having twins through surrogacy have been granted parental rights despite a delay in making their application.

Joanne Grey Senior Associate Solicitor in our family law team reports on this recent case.

When the couple were in a relationship, the woman was told she would be unable to conceive. The twins were born through surrogacy by the woman’s sister by artificial insemination using the man’s gametes.

The couple separated amicably shortly after the twins were born. However, they did not apply for parental orders under the Human Fertilisation and Embryology Act 2008 until 21 months after the children were born. The application should be made within six months of the birth.

The issues were whether they could apply after six months and whether, considering their separation, they met the criterion that they had to be two persons who were living as partners in an enduring family relationship.

The court granted the application.

It held that it could not have been Parliament’s intention that a failure to apply within six months ought to operate as barring an application, given the consequences for the child if no competent application were possible. 

The court noted that the children’s birth mother had never viewed the children as her own.

The orders sought reflected the reality of the children’s lives and family relationships, and those of their birth mother and the petitioners.

Against that background it was important both that the woman ought to be recognised as the children’s mother, and that she should have parental rights and responsibilities in respect of them.

The children were conceived and born during the COVID-19 pandemic.

When the father registered the children’s births, he gained the impression that they would have to make an application after six months had elapsed.

By the time he learned of that mistake and sought legal advice, the six-month period had ended. Against that background, the expiry of the delay ought not to act as a bar to the court making the orders sought.

The children were loved and well cared for. The orders would safeguard and promote their welfare throughout their lives, and it was better for the children that the orders be made than not.

The father lived with a family member across the road from the mother’s house, which he frequently visited.

The couple, though separated, described themselves as co-parenting. They intended to continue to do so. The court was satisfied that they remained in an affectionate and committed relationship and were committed to co-parenting the children. 

For more information about the issues raised in this article or any aspect of family law please contact Joanne on 01434 320362 or click here to send her an email.

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