Parental Age and Future Planning

Background

The applicants, Mr and Mrs K, were both 72 years old and retired at the time of their application. Following the tragic death of their only son from cancer in 2020, they decided to embark on a surrogacy journey in California. A child, B, was born in January 2024 using Mr K’s sperm and a donor egg.

While the applicants had obtained a Californian pre-birth order naming them as legal parents, under United Kingdom law, the gestational surrogate (Mrs Z) and her husband remained the legal parents. The applicants returned to the UK with B in March 2024 and applied for a parental order to secure their lifelong legal relationship with him.

Contentions of the Parties

The primary legal issue was not whether the applicants met the technical “gateway” criteria of Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008)—which they satisfied with ease—but rather the welfare of the child throughout his life.

• The Applicants: Argued that a parental order was essential to provide B with permanence, security, and a legal identity that matched his social reality.
• The Court’s Concern: The court raised a “stark” concern regarding the applicants’ ages. By the time B reached age 18, both parents would be 89 years old. The judge insisted on examining whether sufficient planning had been done for B’s care should the applicants become incapacitated or die before he reached majority.

The Judge’s Decision

Mrs Justice Knowles granted the parental order. She also retrospectively authorized approximately £126,424 in payments that exceeded reasonable expenses, finding they were in accordance with the legal framework in California and did not constitute an abuse of public policy.

Reasoning of the Judgment

The court’s reasoning emphasized that while advanced age is not a bar to a parental order, it necessitates a higher level of scrutiny regarding future planning:

• The “Prism” of Lifelong Welfare: Under the Adoption and Children Act 2002, the child’s welfare throughout his life is the paramount consideration. The judge ruled that for older parents, this welfare must be viewed through a “prism” that accounts for the foreseeable decline in health and the potential for premature loss.
• Requirement for Robust Planning: Initially, the applicants’ plans for “the worst-case scenario” were deemed insufficient. However, during the proceedings, they formalized Wills, Lasting Powers of Attorney, and financial trusts. They also secured commitments from younger guardians (Mr and Mrs Q, and a niece, P) to care for B if necessary.
• New Judicial Guidance: The judge added three new questions to the established guidance for surrogacy cases, requiring courts to investigate the steps taken by intended parents regarding estate planning, future care, and financial arrangements in the event of their death or incapacity.
• Security and Identity: Ultimately, the judge concluded that denying the order would leave B in a “legal vacuum” with parents who had no desire to care for him, whereas the order would provide him with the “social and emotional benefits” of formal recognition.

Conclusion

In K v Z, the High Court confirmed that age alone does not disqualify intended parents from obtaining a parental order. However, the judgment serves as a stern reminder that older or single applicants must proactively address the long-term stability and care of the child. The case established that for a parental order to be in a child’s best interests, “the arrangements for that child’s future care [must] have been thought about, planned and actioned in case the worst should happen”.