Parental orders following informal at home surrogacy arrangement

A recent case has clarified the law surrounding the making of parental orders following a private and informal at home surrogacy arrangement (Y and another v ZX [2023] EWFC 39).

The case concerned a same sex male married couple. The surrogate mother was a friend of the couple. One of the couple was sperm donor.

Insemination took place at home. Twins were born in October 2021.

The necessary parental orders were sought by the couple with agreement of the surrogate, to transfer legal parenthood to the couple.

The court was initially concerned that the requirements of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) had not been met as the insemination had taken place at home, rather than in a registered clinic. Further, the application was made over 6 months from the date of the babies’ birth.

The appeal court clarified the position, making clear that insemination taking place at home does not prohibit intended parents from applying for parental orders. The law requires that the child is conceived by artificial insemination and carried by a woman who is not one of the applicants. It does not require that the artificial insemination takes place at a licenced clinic and nor does it exclude informal, private surrogacy arrangements.

While the case highlights the complexities of the current law, it does demonstrate the willingness of the courts to interpret the legislation so as to ensure the intended outcome is achieved and the best interests of the child(ren) protected.

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