X & Anor v Z & Ors
[2023] EWFC 41
QR (Parental Order: Dispensing with Consent: Proportionality), Re
3 November 2023
[2023] EWHC 3196 (Fam)
High Court
Two parents had a baby through a surrogate in India. Because of delays (mostly due to the baby getting sick and the pandemic), and because they couldn't find the surrogate, a judge decided to let the parents legally adopt the baby anyway. The judge said it was in the best interests of the baby to let the couple keep her.
Key Facts
- •QR, a girl born in May 2020, is the subject of a parental order application.
- •Applicants EF and GH are Indian nationals residing in the UK, seeking a parental order after a gestational surrogacy in India.
- •The surrogate, XY, is married, and her husband's identity is unknown to the applicants and the court.
- •The application was made significantly after the six-month time limit stipulated in section 54(3) of the Human Fertilisation and Embryology Act 2008.
- •The application was made on the basis that the court would dispense with the consent of the surrogate and her husband because they could not be found.
- •The applicants relied heavily on Dr ZJ, the IVF specialist, for information and communication with the surrogate, which proved insufficient.
- •Various delays in applying for the parental order were caused by QR's ill health, the COVID-19 pandemic, and a misunderstanding of UK surrogacy law.
- •The applicants made payments to the surrogate and the agency, raising concerns about compliance with UK laws regarding commercial surrogacy.
Legal Principles
Parental order criteria under section 54 of the Human Fertilisation and Embryology Act 2008.
Human Fertilisation and Embryology Act 2008, section 54
Consent is the bedrock of the surrogacy framework; both surrogate and her husband must consent freely and with full understanding.
Re C (Surrogacy: Consent) [2023] EWCA Civ 16
Dispensing with consent requires scrutinizing efforts to locate the surrogate, considering any earlier consent, and prioritizing the child's welfare.
Re D and L (Surrogacy) [2012] EWHC 2631 Fam
Proportionality must be considered when dispensing with consent, balancing the applicants' and surrogate's rights.
Case law principles on proportionality and Article 8 rights
The six-month time limit for parental order applications can be disapplied in exceptional circumstances, considering factors such as the child's welfare, the reasons for delay, and the intention of Parliament.
Re X (A Child: Parental Order: Time Limit) [2014] EWHC 3135 Fam
Acquisition of domicile of choice requires evidence of residence and intention of permanent or indefinite residence.
Z v C (Parental Order Domicile) [2011] EWHC 3181 Fam
Child's welfare is paramount when considering a parental order.
Adoption and Children Act 2002, section 1
Outcomes
Parental order granted to EF and GH.
The court dispensed with the consent of the surrogate (XY) and her husband due to their inability to be located, considering the applicants' efforts, cultural sensitivities, and the child's best interests. The six-month time limit was disapplied due to exceptional circumstances (illness, pandemic, misunderstanding of law). The applicant EF's domicile in the UK was established. All other criteria under section 54 were met.