PR Order granted in favour of 3 year old twins born by surrogacy: AB v CD (Surrogacy: Time Limit and Consent)  EWFC 12
A gay couple navigated their way through a series of legal obstacles to obtain a Parental Responsibility Order in their favour for baby twins born to a surrogate mother in India. The issues considered by Mrs Justice Theis at Brighton in AB v CD (Surrogacy: Time Limit and Consent) included whether the surrogate mother had been married at the time of conception, whether she had received notice of the adoption application made by one of the parties (thereby giving her a chance to object) and the fact that the application had only been made over 3 years after the children had been born, the usual timescale being within 6 months.
Background to the application
The couple, both born in Britain, had entered a civil partnership in 2007 and lived for a number of years in Australia, both obtaining Australian citizenship, although they always intended to return to live in the UK. After one successful attempt at surrogacy through an Indian agency, they finally achieved success when a woman, named only as CT, conceived twins (one of the couple is the biological father of the twins, the other is not). CT signed a contract with the agency (the main purpose of which was to limit the agencies’ responsibilities towards her health) using a thumb print. The contract was lengthy and there was some debate as to whether CT fully understood what she was agreeing to.
The partner who was the biological father of the children obtained legal parental status whilst still living in Australia. Subsequently the couple and their children moved to the UK, doing so under the assumption that the children would be granted British citizenship. Automatic British citizenship for the twins was rejected because the authorities could not satisfy themselves that the biological mother had been unmarried at the time of conception – meaning that the permission of any husband would be required too. Eventually a discretionary citizenship award was made in favour of the children.
The application itself
Based on the decision in Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam) in which a Parental Responsibility Order was made more than six months after X’s birth, the couple made an application for an Order such that the non-biological father would be able to adopt the twins.
It was acknowledged in the judgement that the couple had made an application to the Australian Courts within 6 months of the birth but had been unaware that they could apply in an English Court while living outside of the UK. It was noted that within 12 days of the judgment in Re X being made available the couple made their application to the English Court.
Mrs Justice Theis made a Parental Responsibility Order rather than an Adoption Order, noting that it better reflected the reality of the situation: the twins had been looked after by the couple since birth with no welfare concerns and that one of the couple was already a biological parent therefore did not need to adopt the twins. A Parental Responsibility Order would formalise the legal status of the second father without creating a ‘fiction’ caused by the implementation of an Adoption Order – an Adoption Order makes it as if the children had been born of the adoptive parents
Mrs Justice Thies quoted Sir James Munby’s judgment in Re X, stating that she agreed with it and its application to the case in hand:
“A parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X’s identity: the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents.”