Re X (A Child) (Surrogacy: Time limit)

Hearing date: 23 June 2014

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Sir James Munby PRESIDENT OF THE FAMILY DIVISION

This judgment was handed down in open court

Sir James Munby, President of the Family Division:

This case raises a question in relation to the law of surrogacy which is both of fundamental significance to the parties and also of considerable general public importance.

Section 54(1)(c) of the Human Fertilisation and Embryology Act 2008 provides that in certain specified circumstances "the court may make an order providing for a child to be treated in law as the child of the applicants" – a parental order – "if … the conditions in subsections (2) to (8) are satisfied." So far as material for present purposes subsection 54(3) is in the following terms:

"the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born."

The question is whether the court has jurisdiction to make such an order if the application is made after the expiration of 6 months. Hitherto, the common belief has been that the court cannot make such an order unless the application has been made within the 6 month period. The question for me is whether that belief is well-founded. In my judgment, and with all respect to those of my brethren who have taken a different view, it is not.

The background facts

B and P, respectively "the commissioning father" and "the commissioning mother", married in 1998. In 2011 they made a surrogacy agreement in India with G and R, respectively "the surrogate mother" and "the surrogate father". The surrogate mother conceived using eggs donated by a third party and the commissioning father's donor sperm.

The child, X, was born in India on 15 December 2011. X entered the United Kingdom on a British passport on 6 July 2013. By that date, of course, the 6 month period under section 54(3) has already elapsed. The reason is simple: the commissioning parents were unaware of the need to apply for a parental order, let alone of the terms of section 54.

On 4 August 2013 the surrogate parents confirmed, in separate written documents, that they wished to relinquish all their parental rights and responsibilities in respect of X. On 1 December 2013 they confirmed that their wishes and feelings about relinquishing parental rights and responsibilities remained the same. The order made on 6 January 2014 by His Honour Judge Plunkett (see below) recites that the surrogate parents have "clearly" and "unequivocally" relinquished and surrendered all parental rights in respect of X.

The problem

It is correctly common ground that the expert evidence before me demonstrates that the surrogacy agreement was valid under Indian law and that under Indian law the surrogate father and the surrogate mother, being married, are treated as X's parents to the exclusion of both the commissioning father and the commissioning mother. That is also the position under English law: see section 35 of the 2008 Act. It follows from this that the surrogate father and surrogate mother have parental responsibility for X under English law. The commissioning father and commissioning mother do not; in fact under English law they have no rights at all. The surrogate parents are X's parents "for all purposes": see section 48(1) of the 2008 Act. It is also correctly common ground that the surrogate parents are, in law, unable to transfer or surrender parental responsibility for X. If the commissioning parents are to acquire parental rights or parental responsibility for X they need an order of the court.

What the commissioning parents want, and what on the face of it X's best interests plainly demand, is an order permanently extinguishing all the legal rights and responsibilities of the surrogate parents and permanently vesting all such rights and responsibilities in the commissioning parents. There are only two ways in which, in principle, such an outcome can be achieved: an adoption order made in accordance with section 46 of the Adoption and Children Act 2002 or a parental order made in accordance with section 54 of the 2008 Act. Adoption is not an attractive solution given the commissioning father's existing biological relationship with X. As X's guardian puts it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X's identity: the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents.

The litigation history

In June 2013 the commissioning parents separated. They remained separated, but not divorced, until June 2014 when they became reconciled. On 9 July 2013 the commissioning father issued an application in the Birmingham County Court for a residence order in respect of X. The case was listed before Her Honour Judge Hindley QC on 19 July 2013. Judge Hindley drew attention to the omission to apply for a parental order under section 54 and to the fact that neither of the commissioning parents had parental responsibility. She transferred the case to the High Court and made X a ward of court. She made an order the effect of which was to split X's living arrangements between the commissioning parents at their separate homes. Those arrangements, endorsed by subsequent orders of the court, remained in place until June 2014, since which time X has lived together with both commissioning parents. Further hearings took place before his Honour Judge Plunkett, sitting as a Deputy Judge of the High Court, on 12 September 2013, 19 September 2013, 7 November 2013 and 6 January 2014.

Throughout this period the parties and the court were proceeding on the basis, as set out in a recital to the order made by Judge Plunkett on 12 September 2013, that "It is no longer possible for any party to apply for a Parental Order under section 54 of the 2008 Act, as the time limit for the same is set at six months from birth which has expired and is not capable of extension." The common assumption was that, in the absence of any application for an adoption order, the only available legal options were residence, special guardianship or wardship.

The order made by Judge Plunkett on 6 January 2014 recorded that there was a significant issue with X's right to family life justifying the instruction of Leading Counsel to advise, amongst other matters, on whether the time under section 54(3) can be extended and, if not, whether it was appropriate to apply for a declaration of incompatibility.

Ms Elizabeth Isaacs QC duly advised. Her opinion is dated 12 January 2014. It dealt comprehensively with all the issues. Importantly, for present purposes, and having referred to Re S (Parental Order) [2009] EWHC 2977 (Fam), [2010] 1 FLR 1156 (Hedley J), A v P (Surrogacy: Parental Order: Death of Applicant) [2011] EWHC 1738 (Fam), [2012] 2 FLR 145 (Theis J), G v G (Parental Order; Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286 (Hedley J) and A and B v SA [2013] EWHC 426 (Fam) (Theis J), Ms Isaacs suggested that, although the wording of section 54(3) was mandatory and that no statutory exception appears to be provided or permitted, and notwithstanding what had been said by Hedley J in In re X (Children) (Parental Order: Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] Fam 71, [2009] 1 FLR 733, para 12, and by Theis J in J v G [2013] EWHC 1432, para 30, it was arguable that the time limit under section 54(3) was not absolute. She suggested that the commissioning parents issue a joint application for a parental order as a matter of urgency. Her opinion reached them on 29 January 2014.

On 19 February 2014, and in accordance with directions given by Judge Plunkett on 12 February 2014, the commissioning parents lodged a joint application at the Family Proceedings Court for a parental order in respect of X. It was issued the next day. The application was transferred to the County Court and thence to the High Court and came before me on 30 April 2014. At that hearing I raised the question of whether any assistance was to be derived from the line of cases starting with the decision (I could not then recall the name of the case but subsequently notified the parties on 8 May 2014) of Lord Penzance in Howard v Bodington (1877) 2 PD 203.

The application came on for final hearing before me on 23 June 2014. The commissioning father was represented by Ms Tracy Lakin and the commissioning mother by Ms Dympna Howells. Ms Isaacs, leading Mr Matthew Maynard, appeared for X. At the end of the hearing I reserved judgment.

The statutory provisions and legislative history

The relevant legal framework is contained in section 54 of the Human Fertilisation and Embryology Act 2008, reproducing with only minor changes provisions originally enacted as section of 30 of the Human Fertilisation and Embryology Act 1990. Section 54 provides as follows:

"Parental orders

(1) On an application made by two people ("the applicants"), the court...