Platonic surrogacy in light of the landmark High Court ruling: new family forms

It is nearly the one-year anniversary of the landmark High Court judgment X & Anor v B & Anor [2022] EWFC 129, in which legal parenthood was awarded to two male friends of a 3-year-old child born via surrogacy who, at the time of the surrogacy arrangement and at the time the order was made, were not in a romantic relationship. The judgment was the first of its kind as it considered and then widened the ambit of the Section 54(2)(c) criteria in the Human Fertilisation and Embryology Act 2008 for joint applicants applying for a parental order, the criteria to be ‘living as partners in an enduring family relationship’.

The details of the case

The facts of the case are important. Mr X married Mrs X in 1986. Despite wanting children together, this was not possible. In 2007, they separated for a period of around six months, during which time Mr X met Mr Y and they had a brief intimate relationship. When Mr X and Mrs X reconciled, Mr X and Mr Y remained close friends. All three were American citizens living in the USA but, in 2009, Mr X and Mrs X decided to move to the UK. The bond between Mr X and Mr Y remained, despite living in different continents. They described their relationship as close and loving, but platonic. When Mr Y mentioned to Mr X that he wanted to have a child, Mr X told him that “he would do everything to help make that a reality”. They therefore decided, in their 50s, to try to conceive a child together via surrogacy. Mrs Justice Theis notes in her judgment that it is clear to her that this was “very much a joint decision derived from the strength and nature of [their] relationship […] founded on their wish to co-parent”. Mr X was still in a loving relationship with his wife, and it was with Mrs X’s support that Mr X and Mr Y embarked on their surrogacy journey together.

The child, G, was conceived using Mr Y’s sperm and an egg from Ms C, who is the niece of Mr X. The gestational surrogate was Mr Y’s sister, Ms B. Both the embryo creation and G’s birth took place in the USA. Following G's birth he was co-parented by both fathers during the first three years of his life by moving between the UK and USA, although Mr Y was considered the main carer based in the USA, with Mr X providing the main financial support for their family unit from the UK. The fathers decided in time that G should be in one jurisdiction for his education and so Mr Y agreed to move to the UK ahead of G starting primary school. At the time of G’s birth, only Mr Y’s name was on G’s USA birth certificate, as he and Mr X had not secured a pre-birth order in the state in which G was born. It is not specified in the judgment whether a post-birth order was obtained so that Mr X also had legal parental status in the USA. Nevertheless, what Mr X and Mr Y soon came to understand was that the law in the UK differs from the law in the USA in that the surrogate, Ms B, was still considered to be G’s legal mother; they would therefore need to apply for a parental order.  

As Mr X and Mr Y were neither married to each other nor in a civil partnership, the role of their legal team was to satisfy the court that they were ‘living as partners in an enduring family relationship’. The difficulty was that the Human Fertilisation and Embryology Act 2008 (HFEA 2008) provides no definition or indication of what an ‘enduring family relationship’ is, let alone what “living as partners” means. With regards to the latter, it was presented to the court that Mr X and Mr Y were living as partners, even though they lived in separate households and Mr X remained married to Mrs X. Reference was made to the case of Re DM and LK [2016] EWHC 270 (Fam), in which the applicants for a parental order were in a new romantic relationship with each other, but had not yet begun living together due mainly to commitments they had to children from previous relationships. There is also no requirement, by statute or otherwise, for applicants to be in a romantic or sexual relationship. The case of X (A Child) [2018] EWFC 15 had previously established that married applicants for a parental order could be in a platonic marriage, so long as the requirements of the Marriage Act 1949 are complied with. In respect of the relationship between Mr X and Mr Y in X & Anor v B & Anor [2022], Mrs Justice Theis commented that there was enough evidence to show that it was a “family relationship”. G moved easily and readily between the two households in different countries, and he would call Mr X and Mr Y “Papa” and “Daddy” respectively. From G’s perspective, therefore, his fathers were and are his parents. Mr X and Mr Y themselves had known each other for many years and their relationship had “settled into a committed and loving” one, having initially been intimate. Her Ladyship also stressed that the fact that Mr X was married to Mrs X was not in itself a reason not to deem Mr X and Mr Y living as partners in an enduring family relationship, but that this should be considered in assessing the evidence. This judgment, therefore, confirmed that ‘living as partners’ does not mean living together under the same roof as romantic or sexual partners in an exclusive relationship.

Other areas of the HFEA 2008 eligibility criteria, which required further judicial scrutiny, were also addressed in the judgment, such as the timing of the application for the parental order (being outside the statutory six-month limit by a number of years), G’s home being with both parents (in separate locations) and Mr X’s domicile of choice, considering he was naturalised as a British citizen in 2015. These aspects are not discussed in this article, but one will find enlightening commentary on them in the judgment.

Other aspects for consideration

The facts of X & Anor v B & Anor [2022] are very distinct and so while the judgment is a landmark one, it does not mean that all platonic applicants in a parental order application can easily be regarded as ‘living as partners in an enduring family relationship’. The question of whether a relationship meets this statutory criterion is a question of fact. Her Ladyship considered that Mr X and Mr Y’s relationship did meet this test, stating:

“To an outsider the nature of the applicants’ relationship may be described 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 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.”

One wonders if the Judge would have reached the same conclusion if the application had been made in the first six months of G’s life, as is the prescribed period within which an application for a parental order must be made, or if the involvement of Mrs X had not been supportive in nature, both in respect of her support of Mr X and Mr Y being in a relationship at the same time as she and Mr X, and in respect of her support for their decision to conceive and raise a child together? In this scenario, the fathers would not have had the same period of time to provide to the Children’s Guardian, the Parental Order Reporter and the court with examples of how they have co-parented while living in separate jurisdictions over the previous three years and how G’s bond with his fathers had developed. There may have been more hesitation on the part of the court to make a parental order in respect of such a non-traditional family unit without being able to make such findings, especially being the first of its kind.

While this judgment shows an acknowledgment and appreciation of diverse family structures, and that judges are at the forefront of considering and interpreting the myriad different ways that families can now be formed, others may argue that the law does not go far enough to recognise new family forms and is lagging behind not just UK society, but globally. In the UK, a child can only have two legal parents, but multiple people can have parental responsibility for a child, per Section 2(5) of the Children Act 1989. Other jurisdictions, such as certain states in the USA (specifically, California, Connecticut, Maine, Delaware, Nevada, Vermont, Washington State and Washington DC) and certain provinces in Canada (Ontario, Newfoundland and Labrador and British Columbia) recognise more than two legal parents.

If Mr X and Mr Y had decided to enter the co-parenting relationship with a third friend, say a Mr Z, who they had known for equally as long, had a shared vision for how G should be raised and Mr Z had an equal connection with G, then why should G miss out on having a third equally legal parent or Mr Z miss out on having his name on G’s birth certificate and being recognised in equal legal standing to Mr X and Mr Y? For many, the answer is simply that the fictional Mr Z could have just as much involvement in G’s life as the very real Mrs X was considered to have in the judgment. The Children’s Guardian, Mr Verity, commented that “[G] will have developed a secure attachment to both [Mr Y] and [Mr X] (and to [Mrs X]), who have separately and together cared for him for all his life”. Mrs X was not, however, an applicant to the proceedings and, we are told in the judgment, did not wish to have any legal standing in respect of G and, therefore, has the non-legal status of stepparent. But what if she had wished to be an equal legal parent with Mr X and Mr Y? This, however, would be a step too far for our judiciary. Our law is clear that there can only be two legal parents, and no amount of ‘judicial gymnastics’ would have been able to square that particular circle. Anecdotally, we know that platonic co-parenting and polyamorous families are on the rise so is it only a matter of time before we should be considering whether a two legal parent structure is still necessary in these modern times?

More than two legal parents

The traditional counterargument is that all babies, whether born via surrogacy/IVF or naturally conceived, are created from a sperm and an egg and are, thus, the genetic product of two persons. The law has evolved over time to recognise same-sex parents and blended families, but the idea of having more than two legal parents has not yet entered mainstream legal rhetoric.

Earlier this year, it was reported that the first UK babies with DNA from three different people were born, due to an innovative IVF procedure, called mitochondrial donation, aimed to prevent children from inheriting incurable diseases. While 99.8 per cent of the DNA of babies born via this procedure comes from the mother and father, and there is no question that the donor in this situation is a legal parent, one wonders how science and technology will develop in the coming years and if, and when, the law will or should catch up.

A child with more than two legal parents would certainly complicate the current system for financial provision for children upon separation. In the UK, child maintenance (as governed by the Child Maintenance Service) is received by the ‘resident parent’ from the other ‘non-resident parent’. If the law allowed for more than two legal parents, the Child Maintenance Service rules would have to be thoroughly reconsidered to ensure that the right payments were being made by the parents.

Conclusion

The case of X & Anor v B & Anor [2022] is significant as it defies any previously held assumption that applicants living as partners in an enduring family relationship must necessarily be in a romantic relationship. It reflects the reality that not all children have parents who are romantically involved, whether they are married to each other or not and recognises that families are created in many different ways. While the authors do not expect our legal system will recognise more than two legal parents any time soon, it is food for thought.

Shaili Gohil-Desai is a solicitor and Natalie Sutherland is a partner at Burgess Mee
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