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Family Law

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Court of Protection Practice and Procedure Conference 2016

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13 MAR 2013

SURROGACY: Re A and B (Parental Order: Domicile) [2013] EWHC 426 (Fam)

(Family Division, Theis J, 14 February 2013)

The male applicants applied for a parental order pursuant to s 54 of the Human Fertilisation and Embryology Act 2008 following a surrogacy arrangement with an Indian surrogate mother arranged through a surrogacy clinic in India. One of the applicants was the biological father of the child and an anonymous donor egg was used. Since birth the child had lived with the men in the UK. The surrogate mother played no part in proceedings.

The men met and lived together in the USA, and had entered into a domestic partnership in the State of California. They moved to the UK together 4 years previously mainly due to the legality of civil partnerships and their wish to raise a family in a society that was tolerant to same-sex relationships. They now had entitlement to remain in the UK permanently, they rented a property and ran a business together. They paid tax and National Insurance contributions in this jurisdiction.

The main issue was one of domicile. On the evidence it was clear that the applicants had discharged the burden of proving the abandonment of their domicile of origin and the acquisition of the domicile of choice. They had both demonstrated by their actions, together with the motivation and rationale behind their respective decisions, that neither of them had any intention of ever returning to live in their country of birth. They had made their home and their lives here, both intended to remain here indefinitely.

The parental order reporter and the health visitor were positive about the applicants' care of the child and had no concerns. The welfare of the child demanded life-long security and stability and that was best met by a parental order securing his legal relationship with the applicants.

The judge granted the application and made a parental order.


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