Surrogacy arrangement – the enduring family relationship test
In a recent High Court case, Re F & M (Children) (Thai Surrogacy) (Enduring family relationship) , the court had to consider whether to make a parental order for twins born in January 2015 to a Thai surrogate mother.
The commissioning parents, P and B, had met in April 2014 and B moved in to live with P in June 2014. When the twins were born, having been conceived using P's sperm and a donor egg, they had been together ten months. By the time they had made their application to the court for a parental order, to become legally recognised as the twins' parents, they had been together fourteen months and had lived together for a year. They planned to marry in August 2017. They explained to the court the delay in getting married as they need to ensure all their friends and family will be able to travel to Scotland for the wedding.
When deciding whether to make a parental order, the court has to consider certain criteria, and one of those is that the applicants have to be either:
(a) husband and wife;
(b) civil partners of each other; or
(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
In the case of P and B, the court had to consider whether the applicants were in an enduring family relationship given the short time they had been together when the twins were born. The court heard that both P and B had ended their previous relationships because their previous partners had not shared their desire to have children. Both of them travelled to Thailand to support the surrogate mother during her pregnancy and they stayed in Thailand for three months after the twins were born to care for them. By the time of the hearing they had been together nearly two years and they had cared for the twins together since they were born. The court therefore found they were a couple and theirs was an enduring family relationship. The parental order was therefore granted.
The case is a reminder to seek specialist advice before entering into any surrogacy arrangements to avoid any difficulties after the child is born.