Limits of Welfare (Surrogate Consent)

Background

The commissioning parents, A and B, entered into a surrogacy arrangement in India using B’s sperm and a donor egg,. Twins, C and D, were born in December 2011 and brought to the UK in 2012,. The parents separated shortly after their return but remained living in the same home until 2014,. They were entirely unaware of the requirement to apply for a parental order, believing the Indian birth certificates—which named them as parents—were sufficient to secure their status in the UK,. It was only after seeking legal advice following their separation and the 2014 decision in Re X (A Child) that they realized an application was necessary. By the time they applied in November 2014, they were 17 months past the statutory six-month deadline, and the father was living in a separate home.

Contentions of the Parties

The case presented several potential legal bars to granting the parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008):

• Time Limit: Whether the court could accept an application filed 17 months after the six-month limit had expired.
• Home with Applicants: Whether the requirement that the children have their “home with” the applicants was met given that the parents lived in separate houses,.
• Consent: Whether the court could be satisfied that the surrogate mother and her husband had given their consent “freely, unconditionally and with full understanding,” particularly since they had not signed the prescribed UK court forms,.

The Judge’s Decision

Theis J granted the parental orders for both children, . The court ruled that the application could proceed despite being out of time and that the children’s living arrangements with separated parents satisfied the statutory criteria,,,. Crucially, the court found that the surrogate mother and her husband had provided valid consent through notarized agreements, even though they were not on the standard UK form,,.

Reasons for the Judgment

The court’s reasoning emphasized a purposive interpretation of the law, prioritized the children’s lifelong welfare, and balanced these against strict statutory requirements:

• Purposive Interpretation and Human Rights: Following the precedent in Re X, the court “read down” the six-month time limit and the “home with” requirement to avoid a “nonsensical” result that would leave the children in a legal vacuum,,,. Under Article 8 of the European Convention on Human Rights, the court protected the children’s right to identity and family life, even when their parents lived separately,,.
• Welfare as the Paramount Consideration: The court applied Section 1 of the Adoption and Children Act 2002, which makes the child’s lifelong welfare the paramount consideration,,. Theis J noted that failing to make the order would be detrimental to the children’s long-term security, as they would otherwise remain the legal children of a surrogate with whom they had no relationship,,, .
• The Necessity of Consent: While the court was flexible on procedural timing and forms, it affirmed that welfare does not eliminate the statutory requirement for consent,,. The court was satisfied only because the clinic provided notarized documents in the surrogate’s language (Marathi), proving she and her husband understood that the order would extinguish their parental rights,,. Theis J confirmed the consent was given freely and was not conditional on the payments made to the clinic,.

Conclusion

Re A and B (Parental Order) demonstrates that while the welfare of the child allows the court to overcome significant procedural hurdles—such as missed deadlines or complex living arrangements—it does not provide a mandate to ignore the fundamental requirement of surrogate consent. The ruling ensures that the “lived reality” of a child’s family life is legally recognized, provided the biological parents have behaved in good faith and the surrogate’s rights have been respected and formally relinquished.