The law states that intended parents 'must' make an application for a parental order - for example, to become a surrogate-born child's legal parents and to acquire parental responsibility - within six months of the child's birth. The High Court has ruled, however, that although it was 'common belief' that the court cannot make orders outside of this time (and that alternatively, an adoption order may be sought to acquire parental rights), it may be prepared to accept late applications.
In his judgment, Mr Justice Munby, President of the Family Division, said: 'Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so'.
'I assume Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe the law as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical'.
The case concerned a child born in 2011 to a surrogate mother in India using the intended father's sperm and donated eggs. The intended parents were unaware, however, of the need to apply for a parental order until the father made an application for a residence order upon their separation. The court handing the application pointed out that neither intended parent had parental responsibility.
Parental responsibility confers the right to make important decisions about a child's upbringing, including medical care and education. Legal parenthood affects inheritance and financial responsibilities. However, the court emphasised that a parental order, which grants legal parenthood from which parental responsibility follows, may have wider meanings for families.
'A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences', Justice Munby stated.
Commenting on the decision, law firm Natalie Gamble Associates wrote that there are many more children born following surrogacy with parents who are not their legal parents. 'We know there is a big gap between the numbers of parental orders being made (213 in 2012) and the numbers of children being born through surrogacy to UK parents (reportedly 1,000 cases per year in India alone)', it wrote.
'For children living in the black hole of unresolved legal status, today's ruling is welcome because it means the door may not be closed to a remedy', it said, adding: 'The case also demonstrates, yet again, just how out of date the UK’s surrogacy laws are'.