F, Re
[2024] EWHC 2849 (Fam)
AY & Anor v ZX
29 March 2023
[2023] EWFC 39
Family Court
Two dads wanted to become legal parents of their surrogate twins. The babies were conceived at home, not in a special clinic. The judge said it doesn't matter where the babies were conceived, as long as all the rules are followed, the dads can become their legal parents.
Key Facts
- •AY and BY (applicants) sought parental orders for CY and DY, born via surrogacy from ZX (respondent).
- •Home insemination was used, not a licensed clinic.
- •Magistrates initially raised concerns about the legality of the parental order application due to the private, unlicensed insemination.
- •The applicants are a married couple, and the surrogate mother freely consented to the parental order.
- •CY experienced significant medical issues post-birth, delaying the application slightly.
Legal Principles
Parental orders under s.54 of the Human Fertilisation and Embryology Act 2008 can be granted even if insemination occurred in a private arrangement outside a licensed clinic.
Human Fertilisation and Embryology Act 2008, s.54
The court's jurisdiction to grant a parental order is determined by s.54 of the 2008 Act, not by whether the insemination happened in a licensed clinic.
Human Fertilisation and Embryology Act 2008, s.54
The court can interpret s.54(3) purposively and grant a parental order even if the application is slightly outside the six-month time limit, considering the children's best interests.
Human Fertilisation and Embryology Act 2008, s.54(3); Re X (A Child) (Surrogacy: Time Limit) [2015] 1 FLR 349
Determining domicile involves connecting a person to a legal system; a domicile of choice can be acquired through residence and intent of permanent or indefinite residence.
ELO v CLO (Recognition of a Nigerian Adoption Order) [2017] EWHC 3574 (Fam); Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood [2008] EWCA Civ 577
Under s.35, a married surrogate's husband gains parental responsibility unless he dissented at insemination. If separated and uninvolved, this doesn't apply.
Human Fertilisation and Embryology Act 2008, s.35; Surrogacy: Law Practice and Policy in England and Wales, Family Law, 23 March 2018
Outcomes
Parental orders granted to AY and BY.
The court found it had jurisdiction under s.54 of the 2008 Act despite the private insemination; all criteria of s.54 were met, and it was in the children's best interests.