Making a Parental Order Posthumously
International surrogacy is a process that is fraught with difficulty at the best of times. The hurdles that are often encountered include complications in relation to the jurisdiction where the child is born especially if surrogacy or same sex relationships are not legally recognised in that country, registration of the birth, nationality, entry clearance to the UK and immigration problems. An issue that is seen in many of these cases is whether the case meets the requirements of 'domicile' to enable the application for a Parental Order to be made in the UK courts. The added complication that arose in XW (Parental Order: Death of an Applicant) [2024] EWHC 2082 (Fam) https://www.bailii.org/ew/cases/EWHC/Fam/2024/2082.html was that the male applicant who had the qualifying genetic connection to the child died after the application was made but before the order had been made.
Case Details
This is a High Court judgment from the Family Division dated 14 May 2024, presided over by Mrs Justice Knowles. The case concerns an application for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 for a boy called XW born in May 2023 through a gestational surrogacy arrangement in Nigeria.
Background
The application was made by M and F in October 2023, but F unexpectedly died in December 2023. The couple had met in 1987 and married in Nigeria in 1999. M was born in Nigeria while F was born in London with British nationality. M moved to the UK in 2009 to live with F. The surrogate, Y, was implanted with embryos created using F's sperm and an anonymous egg donor in September 2022. XW was born in May 2023 in Nigeria.
Legal Process
The initial application was filed in October 2023, but proceedings were complicated by F's death in December2023. Mrs Justice Theis made an order in January 2024 allowing the proceedings to continue despite F's death. M and XW arrived in London from Nigeria in February 2024. The parental order reporter met with M and XW in March 2024 and filed a report supporting the order in April 2024. The surrogate was informed of the proceedings and reaffirmed her consent to the parental order.
Legal Issues
The judgment addressed three key issues under section 54 of the Act: the requirement for the child's home to be with the applicants, the domicile requirement, and consent. The court took a purposive approach to interpreting the "home" requirement given F's death, drawing on precedent cases where courts had addressed similar situations. Regarding domicile, the court found that M had acquired a domicile of choice in the UK, having lived and worked in London since 2009 with indefinite leave to remain since 2018. The surrogate's consent was properly documented and remained valid despite F's death.
Human Rights Considerations
The court considered XW's Article 8 rights under the European Convention on Human Rights, noting that these rights include adequate legal recognition of biological and social ties. Mrs Justice Knowles emphasised that a parental order has a transformative effect on a child's identity and relationships.
Outcome
The court made a parental order in favour of both M and F (posthumously), finding that this best served XW's lifelong welfare interests. The judge noted the importance of XW having legal recognition of both intended parents and that his unique life story should be reflected legally as part of his identity. The payments made to the surrogate (approximately £5,000) were retrospectively authorised as necessary and proportionate.