Irwin Mitchell | Unmarried Couple Granted Legal Recognition as Parents of Biological Child Born through Surrogacy after Three-Year Wait

An unmarried and separated couple have been granted a parental order for their biological three-year-old child after a lengthy legal process.

In Re A an embryo was created at a clinic in 2015 with the egg and sperm of the intended parents. The surrogate was confirmed to be pregnant in June 2016.

There were complicating factors centred on the issue that the intended legal parents had split up while the surrogate was pregnant; when the child was born in 2017, the intended legal mother was at the time unable to apply for a single parental order due to legal restrictions then in place.

When the intended legal parents subsequently decided to apply for a joint application, there were issues around them being unmarried and separated that needed to be considered by the court.

The judge decided it was overwhelmingly the best outcome for the child to be with his (biological and intended legal) parents, despite the issues in the relevant statutory law, and awarded the parents the parental order and ending a three-year legal process.

A parental order is a legal document that transfers legal parentage from the surrogate mother to the intended parent or parents. A parental order can only be made once the child is born.

The judgment has laid bare the issues that surrogacy law has when it comes to modern lifestyles; despite the 2019 change in the law allowing single parents to apply for parental orders, the issues the couple faced as an unmarried and separated couple caused delays and the expense and stress of a court case.

Kathryn Evans, a senior associate in the Family Law team at Irwin Mitchell, said: “Once again, as in a number of surrogacy judgments that have come before, the effect of a parental order being granted – to recognise the intended parents in a surrogacy arrangement as the child’s legal parents – is described by the court as “transformative” for the child in question.

“This emphasises the importance of such orders being made, to ensure the key legal relationships that a child has, reflect their key social, emotional and in many cases, genetic relationships.

“Even with the challenges the intended mother faced at first with not being able to apply for a parental order on her own, perhaps the best outcome for the child was that, whilst waiting for the law to change, both the intended parents decided that despite their separation they would like to revert to their original plan of applying jointly for a parental order.

"Perhaps the long-awaited reform of the law relating to surrogacy will mean that fewer intended parents have to go through such a time-consuming, often costly, stressful and uncertain legal process to end up with a legal result that ultimately makes sense.”

Background

The embryo was created through a clinic in 2015. Unfortunately, the relationship between the intended parents broke down before the child was born in February 2017 and the father had minimal involvement with the pregnancy.

While the intended (and biological) mother cared for the child from the outset, the father made it clear he didn’t want to be involved in the child’s life. At the time, the mother couldn’t get a parental order because she was a single applicant. Her application was therefore stayed, and the child was made a ward of court, with the mother having care and control.

When the 2019 change to surrogacy law allowing single parental orders came into effect, the mother reinstated her application. At this point the father decided he did want to be involved in the child’s life. The intended mother and father instead made a joint application, but unmarried joint applicants who apply for a parental order are required to be “living as partners in an enduring family relationship”. Because the application was also out of time, the applicants were no longer a couple and had two separate homes, the matter proceeded to court.

The court, bearing in mind the age of the child, their best interests, the timescales involved and the various other factors, decided that the best outcome would be to grant a parental order for both parents.

The full judgment can be found here.

Published: August 2020

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August 2020

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Unmarried Couple Granted Legal Recognition as Parents of Biological Child Born through Surrogacy after Three-Year Wait

August 2020

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Unmarried Couple Granted Legal Recognition as Parents of Biological Child Born through Surrogacy after Three-Year Wait

August 2020

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About Irwin Mitchell

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