Despite concerns about whether the legal conditions for such orders had been met, a Court of Session Judge has given orders that twins born through a surrogacy arrangement be considered in law as the children of the people caring for them.
In the first instance of its sort in Scotland, Lady Carmichael granted requests for directions made by AB and XY in relation to the two-year-old twins G and H under section 54 of the Human Fertilisation and Embryology Act 2008.
The couple AB and XY wanted to start a family, but AB was informed she couldn't get pregnant. Her sister Z volunteered to serve as a surrogate and used XY's gametes for artificial insemination to become pregnant. G and H were born in 2021, but AB and XY separated in 2022.
Applications for such orders must be submitted in accordance with Section 54 within six months after the birth of the children, and one requirement is that the petitioners must be husband and wife, civil partners, or "two persons who are living as partners in an enduring family relationship."
"If a parental order is not made, the children are likely to be denied the social and emotional benefits of recognition of their relationships with their parents and would not have the legal reality that matches their day-to-day reality," was one crucial factor to take into account. Where appropriate, a broad and flexible interpretation of those rules should be used to ensure the effective protection of the rights guaranteed by Article 8 ECHR.
AB and XY were now amicably separated. XY continued to be actively involved in the upbringing of the kids despite moving in next door to AB's mother. They both identified as co-parenting. The petitioners are consequently "living as partners in an enduring family relationship" according to Lady Carmichael, who expressed her satisfaction. "They are committed to co-parenting the kids and stay in an affectionate and committed relationship. I'm also happy to see that the kids are still in their house. They live alone in their home, not with the petitioners."