Non-cohabiting married couple ruled legal parents in surrogacy case

A UK man and woman in a platonic marriage have been granted a joint parenting order for their child, born via surrogacy. 

The couple, who have not been identified, live in separate houses and have a committed and longstanding relationship even though one is gay. Sir James Munby, head of the Family Division of the High Court, said in his judgment last week: 'I have not the slightest doubt that I should make the parental order which is so manifestly in the best interests of the child.'

The application for a parenting order was made under section 54 of the Human Fertilisation and Embryology Act 2008 and was necessary as the child was born from a foreign surrogacy arrangement. 

The act requires that the couple be considered 'husband and wife' for the parenting application to be successful. Lord Justice Munby ruled that even though the marriage was non-sexual and the couple resided separately, they satisfied this requirement.

'The marriage, which took place in this country, complied with all the requirements of the Marriage Act 1949,' he said. 'There was no ground upon which the marriage could be declared voidable, let alone void. There can be no question of the marriage being a sham. In short, the marriage is a marriage. 

'The fact that it is platonic, and without a sexual component, is, as a matter of long-established law, neither here nor there… The common law recognises that marriages are valid even if the couple resides separately and lives like "brother and sister".'

An application made under section 54 of the act also requires that the child lives with the applicants.  Lord Justice Munby ruled that the fact that to couple do not cohabit does not invalidate their application: 'The child does not live with anyone else. I need not go into further detail. In my judgment, it is clearly established on the authorities that, in the circumstances of this case, the child's home was and is "with" the applicants.'