JMW’s family law solicitors helped a mother to gain responsibility for her child born through surrogacy and overcame the laws restricting parental orders for single parents.

The Case

JMW acted on behalf of a mother (M) who was applying for a parental order in respect of her biological son, who was born via a surrogacy. M’s gametes had been used to create an embryo that was implanted in a surrogate, the friend of a family member who had no wish to be involved in the upbringing of the child. Once the child was born, he was immediately placed in the biological mother’s care

Under the law in England and Wales, the child’s birth mother was automatically assigned parental responsibility when he was born. Any other parents not listed on the birth certificate must apply for parental responsibility through the court and are not automatically granted this right. As such, M required a legal recognition of parental responsibility in the form of a parental order. 

During the surrogate’s pregnancy, M and the child’s biological father separated and ended their relationship. This presented a challenge for our client, as the law at the time did not permit an application for a parental order by a single applicant. A parental order could only be granted if various criteria were satisfied, including that the application was made by two people, who were husband and wife, civil partners or two persons living as partners in an enduring family relationship.

How Did JMW Help?

The client chose to work with JMW due to our excellent reputation and extensive expertise in the surrogacy field. Our family law team advised M about the difficulty with the laws governing parental orders for single parents and explored other options that would ensure that the child rightfully remained in our client’s care.

We submitted to the court that the law in this area was being reviewed and that it was absolutely in the child’s best interest to remain with our client. The court agreed and ordered that the child be made a ward of the court. This gave the court the power to order that our client be granted care and control of her child. The court also stayed our client’s application for a parental order in anticipation of potential changes to the law.

The Outcome

JMW empathised deeply with our client’s position and secured the best outcome possible given the legal framework in place. While the law can be complex, our experienced team offers expert legal advice on surrogacy that our client could rely on.

The result enabled our client to remain with her son, which was, of course, her primary goal. Understandably, our client longed for the parental order which would define her legal status as the child’s mother and, while this was impossible at the time due to the constraints of the law, the stay on our client’s application meant that as soon as the law changed, she could revisit her application.

Thankfully, the law changed shortly thereafter and, since January 2019, single parents have been able to apply for parental orders. Our client went on to instruct us again following this change in the law and we revisited the court with her application for a parental order.

Read the full judgment here: M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam) (23 August 2017).