3 October 2014
The English High Court has today published a significant legal ruling on the 6 month time limit for issuing a parental order in the English Family Court set out in s54 Human Fertilisation and Embryology Act 2008.
The President of the Family Division, Sir James Munby, has ruled for the first time in Re X (A Child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) that the six month time limit can in some circumstances be extended. Sir James Munby went on to grant a parental order in respect of the child born through surrogacy in India on 15 December 2011 stating:
“Where in the light of all this does the six-month period specified in section 54(3) stand? Can Parliament really have intended that the gate should be barred forever if the application for a parental order is lodged even one day late? I cannot think so. Parliament has not explained its thinking, but given the transcendental importance of a parental order, with its consequences stretching many, many decades into the future, can it sensibly be thought that Parliament intended that the difference between six months and six months and one day be determinative and one day’s delay to be fatal? I assume that Parliament intended a sensible result. Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical”.
That said, Sir James Munby was careful to make clear that each case will be fact specific and he went on to state:
“I intend to lay down no principle beyond that which appears from the authorities. Every case will, to a greater or lesser degree, be fact specific. In the circumstances of this case the application should be allowed to proceed. No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks”.
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