(Family Division, Eleanor King J, 5 March 2014)
Surrogacy - Partial surrogacy arrangement - Failure to apply for parental order - Legal status of mother
The mother was unable to conceive a second child following a hysterectomy so the mother and father entered into an informal partial surrogacy agreement with a friend of the mother whereby the surrogate mother conceived a child with the father via artificial insemination. A pregnancy resulted.
The surrogacy agreement was drawn up by a solicitor at the request of the hospital where the birth was due to take place. The solicitors, in preparing and charging for the agreement committed a criminal offence in contravention of s 2 of the Surrogacy Arrangements Act 1985.
Following the birth the surrogate mother and father were registered as the parents on the child's birth certificate and the mother and father took the child home.
The parents' relationship broke down within months prompting the mother to leave the matrimonial home with the child. She applied for a residence order and a shared residence order was made in favour of both parents. They thereafter applied for a parental order pursuant to s 54 of the Human Fertilisation and Embryology Act 2008. Both parents signed the application but it was not lodged with the court within the requisite 6 month time limit. The parents failed to attend the hearing and the application was dismissed.
The relationship between the parents further deteriorated and the court was asked to address the issues in circumstances where there was no parental order and to consider how this impacted on the exercise of parental responsibility.
Due to the parents' failure to issue an application for a parental order within the 6-month timeframe a parental order was no longer an option. Although a shared residence order had been granted that did not confer legal motherhood upon her and in the event of her losing residence of the child she would also lose parental responsibility. The surrogate mother retained legal motherhood and parental responsibility pursuant to s 33 of the HFEA 2008.
Fortunately the parents, with the assistance of the guardian had been able to reach an agreement as to a sensible and practical shared care arrangement. In order to regularise the mother's legal position the court ordered that: the child would remain a ward of court; a shared residence order would remain in place between the parents; all issues of parental responsibility were delegated to the parents jointly; and, the surrogate mother was prevented from exercising parental responsibility without leave of the court.