(Family Division; Bodey J; 6 July 2015)
Bianca Jackson recently acted for the commissioning parents in the case of Re DM and LK  EWHC 270 (Fam), which was an application for a parental order pursuant to s.54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). The case involved two contentious issues, namely the requirements that the child’s home is with the applicants when the parental order is applied for and made (s.54(4)(a)) and the free and fully informed consent of the surrogate and her husband (s.54(6)). With regards to the former, the parents had a slightly unconventional arrangement whereby the commissioning father only lived with the commissioning mother and the child from Wednesday until Friday each week and on alternate weekends, due to family commitments arising from previous relationships.
However, Mrs Justice Theis accepted that the fact that the commissioning father had to split his time between his two households did not mean the child did not have her home with him. In the alternative, she held that the court could “read down” the provision in line with Article 8 of the ECHR. With regards to the issue of the free and fully informed consent, the surrogate and her husband had consented to the surrogacy arrangement and even signed a (non-enforceable) surrogacy contract; however, until late in the pregnancy, the surrogate mother had been unaware that the commissioning mother and her previous husband (with whom the surrogate and her husband had agreed the surrogacy contract) had terminated their relationship and the mother’s new partner was the biological father of the foetus.
When the surrogate mother was told, she and her husband were understandably distressed; however, they ultimately supported a parental order being made in favour of the commissioning parents. This case again brings to light the need for commissioning parents (and surrogates) to obtain legal advice before commencing their surrogacy journey and the difficulties with the current legal regime surrounding surrogacy and legal parenthood.
Commentary by Dr. Bianca Jackson