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The case of Re X (A Child – foreign surrogacy) – the distracting power of ‘sex’ – but what does it really tell us?

Date:4 APR 2018
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The legal media was quick to jump on the case of Re X (A Child – Foreign Surrogacy) [2018] EWFC 15) to highlight the reference in Sir James Munby’s judgment to the sexual relationship (or rather, the lack of one) in the marriage between the two applicants in this case of a parental order application following a surrogacy arrangement. Very little information as to the parties’, their child’s or their surrogate’s personal circumstances is given in the judgment, although those wishing for details will no doubt have been left reeling for more from the information that was given: the parties are married yet one is gay (the judgment implies that the other is not) and that at least some if not all of their time is spent living in different homes.

The focus of the reporting seemed to be on the lack of a sexual relationship between the parties but Sir James firmly emphasised that it was recognised as long ago as 1868 that a sexual relationship is not necessary for there to be a valid marriage (A v B (1868) LR 1 P&D 559).  

However, of far greater interest from a ‘modern families’ perspective is the acknowledgement that seeking to raise a child or children in a set-up that would be considered by many to be unconventional and may push the boundaries of a conservative’s understanding of ‘family’ is not in itself a bar to being allowed to do so, or, regardless of permission, of doing a very good job of it.

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This judgment follows in the wake of other signs that the judiciary, executive and legislature are acknowledging that approach on what some may consider a more radical footing but which others may consider an attempt at keeping pace with social change.

Following the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam), [2016] 2 FLR 327 the High Court made a declaration that the current law restricting applications for parental orders following a surrogacy arrangement to two applicants. A remedial order was introduced to parliament in November 2017. This will amend s 54 of the Human Fertilisation and Embryology Act 2008 to allow single mothers and fathers through surrogacy to apply for a parental order in the same way as couples. It is currently being considered by parliament and a form of it is likely to become law will be in force some time in the second half of 2018. Plus in February 2018, the Government issued guidance for those considering surrogacy – the first of its kind in England and Wales.

However, there are still some areas where the idea of ‘modern families’ falls down in the law. While the recognition of surrogacy and the spectrum of parenting structures may be fairly fresh as modern topics and social issues, couples opting to cohabit in long-term relationships rather than marry and the lack of legal provision for such couples is not. In fact, it could be argued that that issue is rather stale. But with the number of unmarried couples living together more than doubling from 1.5 million in 1996 to 3.3 million in 2017, it’s well past the time when attention should be turned to this issue.

Sir James Munby has been vocal on his support of radically changing the landscape of family law; in his recent speech at Edinburgh University’s Law School he outlined that change is needed in respect of the law applicable to cohabiting couples and ‘no-fault’ divorce, with sweeping reforms being ‘necessary and inevitable’.

The judiciary has gone as far as it reasonably can in this respect. It’s now time for parliament to step up and really be ‘modern’.