IN THE MATTER OF THE HUMAN FERTILISATION & EMBRYOLOGY ACT 2008, SECTION 54 (2) & (8)
IN THE MATTER OF F & M (Twins) (Born 13th January 2015)
Strand, London, WC2A 2LL
B e f o r e :
| P & B
||1st & 2nd Applicants
|- and -
The Respondent was not represented and did not attend court
Hearing dates: 12th January 2016
Crown Copyright ©
The Hon. Ms Justice Russell DBE:
"Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. As Ms Isaacs correctly puts it, this case is fundamentally about X's identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. A parental order has, to adopt Theis J's powerful expression, a transformative effect, not just in its effect on the child's legal relationships with the surrogate and commissioning parents but also, to adopt the guardian's words in the present case, in relation to the practical and psychological realities of X's identity. A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial)  INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible: see G v G (Parental Order: Revocation)  EWHC 1979 (Fam),  1 FLR 286, to which I have already referred. And the court considering an application for a parental order is required to treat the child's welfare throughout his life as paramount: see in In re L (A Child) (Parental Order: Foreign Surrogacy)  EWHC 3146 (Fam),  Fam 106,  1 FLR 1143. X was born in December 2011, so his expectation of life must extend well beyond the next 75 years. Parliament has therefore required the judge considering an application for a parental order to look into a distant future."
That is why we have made the arrangements that we have. I am grateful to the hon. gentleman for raising the debate, but I say to him that in the Government's view, discussions about surrogacy should be dealt with elsewhere and not by amending the Bill, because the issues involved are complex and the debate has not been properly considered due to its late emergence as an issue in the Bill."
Another point that I wish to make—I hope to catch your eye if we get to a stand part debate, Mr. Hood—is that greater clarification seems to be needed of what an enduring family relationship is. As has been said, there is absolutely no necessity for a couple, whether same-sex or different-sex, to be in an intimate relationship to get the benefit of many of the clauses that we have discussed. I am trying to establish why there is a difference between subsections of the clause, and particularly why subsection (11) does not state that an enduring relationship is a fundamental requirement for getting a parental order."
The hon. Gentleman's amendment would add that a couple applying retrospectively must have been in a relationship for a minimum of 12 months if they are not married or in a civil partnership. Surrogacy can be a route that couples look to when they are unable to have children themselves, and I do not believe—I am sure that members of the Committee do not either—that couples would enter into it lightly. The process of a couple deciding that they are both happy with such an arrangement is complex, and they have to find a surrogate who would be suitable to carry their child. That can take a number of years, so in most cases, the couple will have gone through the process together. In addition, when the court is considering the application, it would have to be satisfied that the couple were in an enduring family relationship for the parental order to be granted. As part of that consideration, it is more than likely that the court will consider the length of the couple's relationship as well as their commitment to each other. The Government are prepared to continue with the arrangement whereby the family division of the High Court would take the decisions on what made for an enduring relationship that was suitable and in the best interests of the child for a parental order to be made.
There is no reference to this enduring family relationship in subsection (11), to which the hon. Gentleman referred, because to make an application to the court under section 54, if the couple are not married or in a civil partnership, they must be in an enduring family relationship. Therefore, it is not necessary for it to be in the legislation in the way that the hon. Gentleman is suggesting. I am sure that the hon. Gentleman would agree with the principle that the family division of the High Court, with its experience, is the best place to test whether a relationship is an enduring one. That decision is better made by the courts than by Parliament seeking to put in place arbitrary time periods or definitions, however well-meaning we may want to be. The ultimate test when issuing the parental order is what is best for the child."