Posted by Patrick Hart, Partner
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Top judge ignores law to recognise couple as surrogate’s parents
Sir James Munby, the head of the Family Division, has set a new precedent in law after waving a rule on surrogacy in the interest of the child.
The Lord Chief Justice was presiding over the case of a Birmingham couple who had brought their son – born to a surrogate – from India only to discover they have no parental rights under British law.
The boy – referred to only as X in media reports – was born in India in December 2011 to a surrogate and returned to Britain with the couple.
But when they arrived they discovered they had no legal rights as parents, even though the husband was his biological father and the child was made a ward of court, while the surrogate and her husband remained his legally-recognised parents.
At a High Court hearing on Friday Lord Chief Justice Munby waived the six-month time restriction within which parental order bids must be made under the Human Fertilisation and Embryology Act 2008.
He told the court: “Can Parliament really have intended the gate should be barred forever if the application for a parental order is lodged even one day late?
“That is very antithesis of sensible; it is almost nonsensical’.”
He added that applying such a strict limit might even violate the boy’s human right to respect for his family life.
He found that there was no dispute that the surrogate mother and her husband had waived any rights they had over the boy
He added that no possible harm would be caused to the couple, the surrogate parents and most importantly X, and that failing to recognise their parent-son relationship would cause the couple to ‘suffer immense and irremediable prejudice’.
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