The High Court delivered a judgement that underscores the paramount importance of lifelong welfare considerations in parental order applications, particularly in cases involving older intended parents.
Background:
Mr. and Mrs. K, a retired couple in their early seventies who have been married for over 35 years, applied for a parental order in the UK in July 2024 for B, a little boy who was born in the USA in January 2024. B's birth resulted from a gestational surrogacy agreement in California, using Mr. K's sperm and a donor egg, with Mrs. Z acting as the gestational surrogate.
Mr. and Mrs. K faced difficulties conceiving and tragically lost their first son, A, who was born in 1993, to cancer in 2020. They decided to pursue surrogacy in California by 2021 and were adamant that “this was not an attempt either to replace A or to manage their grief”. They selected an egg donor by the autumn of 2022 and were matched with Mrs. Z as their experienced gestational surrogate. Mrs. Z had already given birth to two children via gestational surrogacy in early 2023. They maintained close contact with her throughout the pregnancy, attending antenatal and scan appointments remotely.
Mr. and Mrs. K obtained a pre-birth order in December 2023, granting them exclusive parental and legal parentage of B upon his birth and extinguishing any rights of the surrogate and her husband. B was born a month prematurely in early 2024, and Mr. and Mrs. K cared for him in the US for 7-8 weeks before returning to the UK in early March 2024. B travelled on a US passport and birth certificate, which named Mr. and Mrs. K as his parents.
Mr. and Mrs. K devote themselves to his care, in which they are assisted by a nanny who comes to the family home five days a week. Close family members, Mrs. K’s niece and friends of their late son, Mr. and Mrs. Q, were not aware of the surrogacy plan and were informed after B’s birth.
Mr. and Mrs. K applied for a parental order in the UK in July 2024. Following standard directions and a report from the Parental Order Reporter recommending the order, the Court, at a hearing on 28 February 2025, acknowledged the straightforward satisfaction of the statutory criteria under Section 54 of the Human Fertilisation and Embryology Act (HFEA) 2008. However, due to the significant welfare concerns arising from the applicant's age, the Court sought further information regarding the long-term care arrangements for B. A child arrangements order was made to grant Mr. and Mrs. K parental responsibility for B in the interim, as no one in the UK held parental responsibility.
Decision:
The High Court granted the parental order in favour of Mr. and Mrs. K. The Court meticulously considered B's welfare throughout his life, as mandated by Section 1 of the Adoption and Children Act (ACA) 2002 and imported into parental order applications. It acknowledged the positive bond between B and Mr. and Mrs. K, B's developmental progress, and their commitment to informing him about his origins in an age-appropriate manner. The Judge gave significant weight to the welfare concerns arising from Mr. and Mrs. K's advanced age. While recognising their current good health, the Court highlighted the foreseeable risk of their future incapacity or death before B reaches maturity.
The Court noted that, while Mr. and Mrs. K had carefully planned their surrogacy journey, the arrangements for B's long-term care in the event of their incapacity or death were only fully addressed after the Court raised concerns. The Court welcomed the finalisation of wills, lasting powers of attorney, and financial provisions for B. The preference for a special guardianship order for Mr. and Mrs. Q in such circumstances was deemed sensible, preserving B's legal relationship with Mr. and Mrs. K while ensuring stable alternative care. As Mrs. Justice Gwynneth Knowles noted, “This judgement is being reported because it raises an important welfare issue and offers some advice for those who may, in future, engage in a foreign or other surrogacy arrangement.”
Despite the existence of a Californian pre-birth order recognising Mr. and Mrs. K as B's parents, the UK legal position at the time of the application was that Mrs. and Mr. Z were B's legal mother and father, respectively. Mr. and Mrs. K had no legal parental status in the UK, despite being B's primary caregivers since birth.
Implications:
This case drew from previous judgements and provided additional guidance for individuals considering surrogacy arrangements, particularly those involving foreign jurisdictions or older applicants. For a parental order to be granted in case of an older couple, the Court will now expect prospective parents to consider before entering into any surrogacy agreement estate planning, future care, and financial arrangements in the event of incapacity or death. The Court's detailed consideration of Mr. and Mrs. K's age sends a clear message that applications from older intended parents will be subject to heightened scrutiny regarding the long-term care arrangements for the child. While advanced age is not an automatic bar to a parental order, applicants must demonstrate robust and well-considered plans for the child's upbringing in the event of their potential future incapacity or death.
This judgement highlights that the child's welfare is paramount, especially lifelong welfare. The case also illustrates the stark differences in legal parentage between the US and the UK, and that US pre-birth orders do not automatically confer legal parenthood within the UK.
