Parental orders made in first Scottish surrogacy case
A Court of Session judge has granted orders that twins born through a surrogacy arrangement are treated in law as the children of the persons looking after them, despite questions as to whether the legal requirements for such orders had been satisfied.
In the first case of its kind in Scotland, Lady Carmichael allowed applications by AB and XY for orders under s 54 of the Human Fertilisation and Embryology Act 2008 in respect of two year old twins G and H.
AB and XY were in a relationship and wanted to start a family, but AB was told she was unable to conceive. Her sister, Z, agreed to be a surrogate and became pregnant through artificial insemination using XY's gametes. G and H were born in 2021 but AB and XY separated in 2022.
Section 54 states that applications for such orders must be brought within six months from the children's birth; and one condition is that the applicants must be husband and wife, or civil partners, or "two persons who are living as partners in an enduring family relationship".
Following an English case, Re X, which allowed an application more than two years after the birth of the child, and subsequent decisions, Lady Carmichael said: "It is clearly desirable that applications relating to children should be made and dealt with promptly, but that requires to be balanced with the circumstances of the particular case and the consequences of an order not being made... It cannot have been the intention of Parliament that a failure to apply within six months should operate as barring an application, given the consequences for the child if no competent application were possible."
An important consideration was that: "If a parental order is not made, the children are likely to be denied the social and emotional benefits of recognition of their relationships with their parents and would not have the legal reality that matches their day to day reality. A broad and flexible construction of those provisions should be adopted where that is necessary to secure the effective protection of the rights protected by article 8 ECHR."
The applicants had not taken legal advice at the time, and the children were born during the pandemic when AB had not felt it safe to be going out and about. "The children are loved, well cared for and thriving in the care of the petitioners. I am satisfied that the orders sought will safeguard and promote the welfare of the children throughout their lives, and that it is better for the children that I make the orders than that I do not make them."
Although AB and XY were now separated, this had been amicable. XY now lived with AB's mother, across the road from AB, and remained fully involved in the children's care. Both described themselves as co-parenting. Lady Carmichael was therefore "satisfied that the petitioners are living as partners in an enduring family relationship. They remain in an affectionate and committed relationship, and are committed to co-parenting the children. I am satisfied also that the children have their home with them. They do not have their home with anyone other than the petitioners".