Protracted Delay

Background

The applicants, D (the biological father) and G (the commissioning mother), entered into gestational surrogacy agreements in California in 2006 and 2009,. Their children, A and B, were born in 2006 and 2009 respectively, and the family returned to the UK shortly after each birth using British passports,,. Under Californian law, D and G were the legal parents, but they were entirely unaware that English law required a parental order to secure their status in the UK,.

It was not until 2012, through a newspaper article, that they realised they were not the children’s legal parents under domestic law. By the time they applied for an order in 2014, the children were 8 and 5 years old—well beyond the six-month statutory time limit prescribed by Section 54(3) of the Human Fertilisation and Embryology Act 2008 (HFEA 2008).

Contentions of the Parties

The central legal challenge was whether the court had the jurisdiction to grant a parental order after such a protracted delay,.

• The Applicants: Argued that the delay was “innocently wrought” due to a lack of legal advice in the UK and that parental orders were more appropriate than adoption to reflect the children’s true identity,,.
• The Children’s Guardian: Strongly supported the parental orders, contending that adoption was a “square peg for a round hole” because it would artificially treat the children as if they were not the biological offspring of their father,.
• The Respondents: The surrogate and her husband supported the application, wishing to be divested of the legal parentage they technically held under UK law,.

The Judge’s Decision

Mrs Justice Russell granted the parental orders for both A and B,. She also retrospectively authorised the payments made to the US surrogate and agency, finding they were made in good faith and were not disproportionate,,.

Reasoning of the Judgment

The court’s reasoning emphasized the “transcendental importance” of a child’s legal identity over strict procedural timelines:

• Purposive Interpretation of Time Limits: Following the precedent in Re X, the judge ruled that Section 54(3) should be read as a directive rather than a mandatory bar,. She concluded that Parliament could not have intended for a delay—even a very long one—to forever bar an application that is central to a child’s being,.
• Paramountcy of Welfare: Under the law, the child’s welfare throughout their life is the paramount consideration,. The judge held that the impact on the children if the application were refused outweighed the public policy of adhering to the six-month window,.
• Identity vs. Adoption: The judge found that parental orders were the “most apposite” remedy because they recognise the children as the natural children of their parents,. Adoption was deemed “artificial” and “inappropriate” because it would deny the biological and social reality of the family, potentially violating their Article 8 rights to respect for family life,,.
• Good Faith: The court accepted that the parents acted with integrity and had been misled by the fact that the British authorities had previously issued the children UK passports, which reinforced their belief that their legal status was already secure,,.

Conclusion

Re A and B (D and G v ED and DD) confirms that the English court will not allow a procedural deadline to create a “legal vacuum” for a child. By adopting a purposive interpretation of the HFEA 2008, the court ensured that the legal status of the children finally matched their biological and emotional reality, prioritizing their lifelong security and identity.