Parental order made in favour of separated unmarried intended parents

Case: Re A

Rose-Marie Drury represented the surrogate mother (on a pro bono basis) in a case that established it is possible for a parental order to be made in favour of separated unmarried intended parents, where the intended parents are no longer living together.

This is the second reported decision in this case.  The first, M v F, was among a group of cases that led to a change in the law in January 2019 allowing single parents to apply for a parental order following a surrogacy arrangement for the first time. 

The couple (M and F), who had entered into a surrogacy arrangement in the UK, separated before the child was born.  M and F were the child’s biological parents but F and the surrogate mother were the legal parents (because, under English and Welsh law, the woman who gives birth to a child is the legal mother).  Despite the fact that the surrogate mother had surrendered care of the child to M, and F had made clear that he wanted no involvement in the child’s life - the law at that time prevented M, as a single parent, from obtaining a parental order that would make her a legal parent and permanently extinguish the rights the surrogate had.

Following the change in the law, M began to progress her application for a parental order.  However, F changed his mind and decided he did want to play a full part in his child’s life although the couple remained separated.  A joint application for a parental order was made but this gave rise to another legal problem around the numerous legal requirements that unmarried couples need to meet before a parental order can be made including that they should be living as partners in an “enduring family relationship” and that the child’s home must be with the people applying for the order.  The judge found that M and F’s relationship did meet the legal requirements because of their commitment to their child and that “home” did not necessarily mean that the family had to live under the same roof. 

The case has established that it is possible for a parental order to be made in favour of two unmarried intended parents who separated after conception, and were not living together at the time of birth of the child or since.

A link to the judgment can be found here.

  • Rose-Marie Drury

    Principal Associate

    Rose-Marie Drury

    Principal Associate

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