‘Enduring Family Relationship’ – Can We Be Friends?

For National Surrogacy week 2023, I wanted to reflect on one particular case from the last year that will give many modern families a reason to celebrate.

B & Anor [2022] EWFC 129 (Theis J)

Not only does this case illustrate the way in which the Court will interpret legislation in order to ensure that the welfare of a child remains the primary consideration, but it also offers a potential alternative avenue to parenthood that may not have been considered by some individuals.

Background

The Applicants (Mr. X and Mr. Y) were both born in the US and met when Mr. X and his wife separated for around six months. During that time, Mr X and Mr Y had a brief intimate relationship which did not progress however, they remained friends and had a close, loving bond albeit their relationship was solely platonic.

Mr X and his wife had never had children. Both Mr. X and Mr. Y longed to have children and decided, with the support of Mr. X’s Wife, to undergo a surrogacy arrangement with Mr. Y’s sister acting as the gestational surrogate – it is also worth noting that Mr. X’s niece donated her eggs, so it was a real family affair.

When the child (G) was born only Mr. Y was named on the US birth certificate. Mr. X was planning to move to the UK and it had always been the joint intention that they would co-parent and make decisions about the child together. It is worth noting that Mrs X was wholly supportive of the relationship between Mr X and Mr Y.

The Applicants therefore made an application to the Court for a Parental Order naming them both as the child’s parents.

Human Fertilisation and Embryology Act (“HFEA”) 2008

In order to grant a Parental Order, the Court must analyse the criteria set out, in this case where there were two applicants, at Section 54 of HFEA 2008.

The area of the Court’s analysis I will focus on here is with regards to the requirements set out at Section 54 (2)(a-c) of HFEA 2008 which states the following:

(2) The applicants must be---

• a) Husband and wife
• b) Civil partners of each other, or
• c) Two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other. 

Judgment

The Judge in this case stated that:

“to an outsider the nature of the applicants’ relationship may be descried as ‘unusual’ or ‘unconventional’ but the court must remain focussed on the statutory requirements. In my judgment, the applicants are ‘living as partners in an enduring family relationship’. They are in a long term committed relationship with each other that has been in existence for a number of years. Whilst it is right that Mr X has remained married and living with his wife, the existence of that relationship has not detracted from the evidence the court has of the way Mr Y and Mr X operate as committed and loving partners, particularly in relation to the way they have made the decision to have a child, the steps they have taken to do that and what they have done following G’s birth.

Of course, every case is fact-specific and the elements of this case that led to this decision included:

• The Applicants did not have to be living together as partners.
• There was no requirement for there to be an intimate relationship between the Applicants or for one of them to not be married to someone else at the time of the surrogacy arrangement or application.
• They clearly evidenced that the decision to have G was a joint decision based on the nature and strength of their relationship.
• Although the living situation and relationship was not conventional, the Court found the relationship to be enduring – the Applicants had known each other for 15 years, it was an established and loving relationship which again they could evidence clearly.
• The Court stated that there was no requirement in the HFEA 2008 for the Applicant’s to be in an exclusive relationship.

Having met the HFEA S54 criteria, the Judge had to consider if G’s lifelong welfare needs would be met by the Court making a Parental Order. The Judge concluded that they would, and the Parental Order was granted.

What Does This Mean?

Prior to this case, the interpretation has been that an ‘enduring family relationship’ was to be read in the traditional sense – namely living with the other person, in a loving and intimate relationship etc. The Judge said, “the applicants are very much a family unit even though they have not had the relationship history of family life together that is common to move conventional situations.”

The interpretation of the legislation within this case has widened the meaning of an “enduring relationship” considerably and extends to unconventional parenting arrangements such as was the case here - where two long term partners, who had a desire to have children acted upon that and were able to fulfil that desire, with the backing of the Court.

Therefore, another avenue towards parenthood has been created – which is definitely something worth celebrating.  

At Irwin Mitchell LLP we support all individuals on their journey to parenthood. If you need any legal advice in relation to Surrogacy and the Parental Order process, please do not hesitate to contact one of our experts.