Family Law Hub

Surrogacy and Fertility

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  • The three-year-old child had been born as the result of a surrogacy agreement, an IVF embryo produced from the couple's gametes being implanted in a surrogate mother. The couple separated before the child was born, and the father had stated that he had no wish to play any part in the upbringing of the child. The biological mother had applied for a sole parental order, but the father having changed his mind, they now jointly applied for a parental order. The three legal issues were (i) that the application was made outside of the six-month time limit (s 54(3)); (ii) that the child's home would not be the same home as both parents because they had separated (s 54(4)(a)); and (iii) whether the mother and the father could be found to be two persons who are "living as partners in an enduring family relationship" (s 54(2)(c)). Reading the provisions of s 54 in a "purposive and Convention compliant manner", Keehan J was satisfied that the statutory requirements were met on the facts of this case and concluded that a parental order made in favour of the couple was the only order which would in law recognise them as the child's parents, and was overwhelmingly in his best interests. Keehan J therefore made a parental order in respect of the child in their favour. Judgment, 22/12/2020, free
  • A male child had resulted from a surrogacy arrangement. The wife had then arranged a further surrogacy without the husband's knowledge, and they had subsequently separated. The husband and wife jointly sought a parental order for the first child, and the father sought a child arrangements order with regard to him. The guardian supported the father's application. The wife sought a non-molestation order against the husband, as well as findings of fact that she had been the subject of financial, coercive and controlling abuse during their relationship. Keehan J did not place any great weight on the views and opinions of the social worker involved, who had omitted a number of a significant factors from her assessments in the case, but he gave considerable weight to the recommendations of the guardian. He found that it was in the son's welfare best interests to live with his father, and made a child arrangements order to that effect. He made none of the findings of fact sought by the mother against the father. Judgment, 25/09/2020, free
  • Parental responsibility after the separation of an unmarried same-sex couple who were not in a civil partnership, in circumstances where the prescribed HFEA forms were not completed due to an error at the IVF clinic. This had consequences for maintenance assessments and the child arrangements order. Theis J made the declaration of parentage sought by the applicant. Judgment, 29/03/2019, free
  • A child, who was born in 2011, was conceived via IVF using the gametes of the parties but after they had separated and without the permission of the father (the mother had forged his signature on the papers). Father succeeded on all aspects of his primary case against the clinic for breach of contract. However, the judge held that he could not recover damages for the cost of the child's upbringing for reasons of policy. His appeal against this decision failed. Judgment, 18/12/2018, free
  • Application, among others, to make two children, born under a surrogacy agreement, wards of court in circumstances where no parental order had been made transferring parental responsibility from the surrogate parents and child arrangements needed to be settled after the mother with care remarried. Judgment, 26/06/2018, free

Latest know-how

Latest training

  • Two webcasts taken from a webinar first broadcast live on 20 June 2017 Webcast, 22/06/2017, members only
  • Marisa Allman of 36 Bedford Row provides a thorough grounding on the legal issues that couples need to consider before raising a family through non-traditional routes. Webcast, 06/07/2015, members only
  • In this webinar which was recorded on 30 June 2015, Martin Kingerley of 36 Bedford Row provides an update on the latest cases, law and regulation surrounding surrogacy agreements and parental responsibility. Webcast, 01/07/2015, members only


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