With the arrival of Kim Kardashian West’s fourth child, we saw renewed media coverage of parenting through surrogacy this week. It is great to see positive portrayals of surrogacy capturing the public’s attention in this way.

Receiving less media attention though no less important, the slow trickle of notable surrogacy cases reported by the family court continues. These cases refine the interpretation of the key legislation and decide important issues that may not have been previously tested in court.

In the case of K v L [2019] EWFC 21, a couple became parents following a surrogacy arrangement in Canada. The child was conceived using Parent K’s sperm and a donor egg. The child was born in Canada and the intended parents returned home to the UK with their child. They made an application for a parental order so that legal parenthood could be transferred to them from the surrogate and her husband. This is a quirk of the law that operates when a surrogate is married, even though the husband and, in many cases, the surrogate herself are not genetically related to the child. As happens in some cases, the court made a child arrangements order granting the intended parents parental responsibility to cover the period before a parental order would be made. This is not usually necessary, particularly when the surrogate is UK-based.

Not long after this interim step, the intended parents’ relationship began to break down. By the time the court was to make the parental order itself, they had separated and the child’s time was divided between the intended parents’ homes. There had been some conflict as to how the child’s time would be spent but this had been resolved by the time the court came to adjudicate on the parental order itself.

There is a list of criteria that must be met before the court will grant a parental order. These are set out in section 54 of the Human Fertilisation and Embryology Act 2008 where the applicants are a couple and (introduced in January 2019) section 54A for single applicants. The two crucial parts of the legislation were the requirement that the applicants must be married, in a civil partnership or an “enduring family relationship„, and that at the time of the application and the making of the order, the child’s home must be with the applicants. Could this include a couple who were together when the application was made but had separated by the time the order was due to be granted?

The court decided that:

• Couples who apply for a parental order together must be in an enduring family relationship (or married / in a civil partnership) on the date the application is made but not necessarily after that point because the legislation does not specify this
• This child had a home with each of her intended parents at the time the order was to be made, even though this was by now in separate households
• The transformative effect of a parental order transferring legal parenthood from a surrogate to intended parents was fundamental to this family’s right to a family life
• Because of the importance of respecting this human right, the requirement that the child’s home be with the intended parents at the time the order is made should be interpreted flexibly and creatively to achieve the intention behind the legislation, i.e. creating stable family units for children born through surrogacy and their intended parents. This is sometimes known as a “purposive„ approach to interpreting legislation

The parental order was made and the agreed arrangement for the child moving between her parents’ home would continue.

If the couple had separated before the application was made, the situation would have been different. Only the intended parent who was genetically related to the child could have applied for a parental order and acquired legal parenthood. To obtain this order, that parent would need to have the child living with them, albeit not full-time. The other intended parent could have obtained a child arrangements order confirming that the child lived with them, and giving them parental responsibility. In alternative scenarios where intended parents separate (or one dies) at a crucial point in the process, alternative orders such as wardship are possible in order to secure the child’s status but clearly a parental order is preferable.

This is yet further evidence of the family court’s desire to make a parental order after surrogacy whenever it can. Some requirements are non-negotiable, such as the fact that the child must be genetically related to at least one of the intended parents. However, other elements of the legislation have been subjected to a purposive approach, including when time limits on applications have been exceeded for good reason. It is very welcome that the courts continue to recognise the importance of parental orders to the family life of the child and the intended parents and do whatever they can, within the bounds of the law, to make them.