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

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 ...

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