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In a recent court ruling, His Lordship Keehan J had to act creatively in making various ordered to secure the welfare of the children, who were born as a result of a surrogacy arrangement.
The children were born in 2010 in India and the biological parents were British. After the birth, the children were handed over by the surrogate to the biological parents. To transfer all parental rights from the surrogate to the biological parents, they needed to apply for and obtain a parental order. However, the biological parents were not aware they had to do this and no parental order was ever made. As such, the legal position was that the surrogate and her husband were the legal parents.
The biological mother then separated from the biological father and had since remarried. Therefore, at the time of the hearing, the children were living with the biological mother and now stepfather.
The court proceedings started when the stepfather applied for parental responsibility for the twins. However, this application was not granted, as a parental order was needed in the first instance.
In accordance with the Human Fertilisation and Embryology Act 2008, as the biological mother and stepfather were not married or living together at the time the children were born, they were unable to apply for a parental order. The 2008 Act also prevents a single person from applying for a parental order after surrogacy, meaning that the biological mother could not apply on her own.
The biological father was also unable to apply for a parental order as a single parent. He was residing abroad and subsequently disengaged himself from the proceedings.
This left a complex legal problem. The children’s CAFCASS Guardian recommended that the children should live with the biological mother and step father permanently. The children were made wards of the court for the time being, with an order that they live with the biological mother and stepfather permanently. The court did not make any order for the children to have contact with their biological father, as there were welfare concerns surrounding this.
As the court was prevented from making a parental order, which would have been the usual order to make after surrogacy, the court made an order restricting the exercise of parental responsibility of the surrogate and her husband in India.
Keehan J considered the current law, which did not recognise either of the biological parents as legal parents and noted that the losers were predominantly the children, who do not have biological parents recognised in law.
Instead, he had no option other than to construct a set of orders to secure the welfare of the children, which fell far short of the effect of a parental order.
This case highlights how out of date and incompatible the current law is in this modern society. There are calls for law reform as a result of various cases, where the law has failed to protect modern families and children.