Cambridge Family Law Practice

A High Court Judge issued a parental order for a child born through surrogacy in spite of the death of the one of the intended parents.

Under UK law, the status of parent is retained by the woman acting as the surrogate until it is transferred to the individuals who intended to be the parents. This transfer of status occurs when the family court issues a parental order following the birth, under section 54 of the Human Fertilisation and Embryology Act 2008.

In May 2023, a baby boy was born through surrogacy in Nigeria. He was referred to in the published version of the judgement granting the parental order as ‘XW’, and the woman who carried the pregnancy as ‘Y’.

The intended mother (M) was a Nigerian national, while the intended father (F), also the child’s biological father, was British. The couple originally met in 1987, but they did not marry until 1999 while still living in Nigeria. A further decade passed before M and F separately relocated to the UK and moved in together. In May 2022, they returned to the West African country and began attempting to commission a child at surrogacy clinics. XW was duly born in September 2023 and the couple began to make arrangements to bring him back to the UK: they applied for the parental order and set about clearing the child’s immigration status.

But things suddenly took a shocking turn, explained Mrs Justice Knowles:

“F…unexpectedly and sadly, died in December 2023.”

M, still in Nigeria, eventually set aside her grief and continued the application for a parental order. The case eventually came before Mrs Justice Knowles in May 2024. The Judge noted that:

“[Surrogate mother] Y has been told of this hearing and I am satisfied that she has been informed of not only the date of the hearing but also that the court might make a parental order today. I have seen the letter written by the applicant’s solicitor sent to Y via the surrogacy clinic. Y responded to that letter sending her condolences to M and reaffirming her consent to the parental order being made. She confirmed that she gave her full support to the legal proceedings and that she agreed to “completely transfer every parental responsibility to your client”.”

In deciding whether to issue a parental order in the unusual circumstances of the case, Mrs Justice Knowles considered two prior cases: one from 2011 and one from 2020. In the first, A v P (Surrogacy: Parental Order: Death of the Applicant) [2011] EWHC 1738 (Fam), the father in a commissioning couple died after they had applied for a parental order. The order was still issued to the mother because this was considered to be in the best interests of the child.

The second case, Re X [2020] EWFC 39, also featured the death of an intended father – this time before the child was born. The presiding judge issued a parental order to the intended mother in order to ensure that section 54 of the Human Fertilisation and Embryology Act was compliant with Article 8 of the European Convention on Human Rights. This protects the right to respect for private and family life, including “adequate legal recognition of biological and social ties”.

Mrs Justice Knowles explained that:

“…in respect of XW’s article 8 rights, I accept … that he too had an established family life with the applicants from the moment of his birth until the untimely death of F in December 2023, [and that] he enjoyed a family life with both applicants. That is absolutely clear from the written evidence before the court.”

She continued:

“Respect for family life requires acknowledging that his biological and social reality prevails over legal presumptions. Finally, XW is the biological child of [F] and that demands respect for his family life.”

The Judge concluded:

“From the moment of XW’s birth until the death of F, he was an integral part of the family. If a parental order was not made, then as a child of both applicants, X’s parentage would be unrecognised in law. This would have an unconscionable effect on XW’s life. An adoption order would not reflect XW’s life story. M does not wish to adopt XW as a single adopter. It would not be in keeping with what has occurred in this case. Even if she did qualify under [section 54] for a parental order as a single person, that too would not reflect XW`s life story. It would deprive XW of his biological father and [he and] M from being recognised as his legal parents.”

Jeremy Ford, one of the partners here at Cambridge Family Law Practice comments: “This is another example of the Court taking a sensical approach to the relevant legislation relation to surrogacy – in tragic circumstances.”

Read the judgement in full here.