In a case published last week one of our judges significantly extended the strict 6-month time limit for commissioning parents to apply for Parental Orders following an overseas surrogacy agreement. In this particular case the parents had delayed applying for a Parental Order at the time of the child’s birth in India, because of the significant legal costs involved and because they were worried that the order might not be granted.
The baby was born in India in 2010 and shortly after birth he travelled to England with the two commissioning parents, and has lived with them since then.
The parents intended to apply for a Parental Order at the time that they returned and the required consent documents were signed by the surrogate parents to extinguish their parental rights in respect of the baby, however the parents didn’t pursue their application for the reasons set out above. They also became concerned that if they didn’t succeed then the baby might be removed from their care.
When the parents heard about another case in which it was made clear by the Court that the six month time period could be extended at the discretion of the judge, this encouraged them and they then decided to apply for an Order.
There was a six year delay which led to difficulties in the parents being able to serve the surrogate parents with copies of their application. They were eventually located and consulted with a lawyer, although they didn’t sign the documents (which had been explained to them in Hindi) however there was no suggestion that the surrogate parents were unhappy with the arrangements, and the Court here inferred notice and effective service.
In this case the reasons for the delay in bringing the application for Parental Order were held by the Court to be valid. By 2010 there had been few foreign surrogacy cases which had been through the Parental Order application process and the procedure itself was uncertain. There were few reported cases explaining when the Court would grant Parental Order and when such an application was likely to be refused and there was little publicity of these types of cases.
In the judgement published yesterday it’s clear that the Court took the view that the baby’s lifelong welfare needs were met by making the Parental Order.
This case is significant because it is the first one extending the time limit for making a Parental Order where the applicant parents knew they could have applied for the Order at the time of the child’s birth.
The law in the area of surrogacy and assisted reproduction is constantly evolving and it is always advisable to seek advice from a specialist family solicitor if you are thinking of entering into any such arrangement.
You can contact Louise Barretto, a Partner in our Family team, on direct dial 020 7091 2869 or by email on mailto:firstname.lastname@example.org if you wish to discuss any issue raised in this update or in relation to surrogacy matters more widely.