Z (A Child) (No 2)  EWHC 1191 (Fam) 20 May 2016 – read judgment.
The Court of Protection has granted an order for a declaration of incompatibility with Convention rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination.
This case concerned a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother. The surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law.
Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father’s sole parentage of Z. Following that court order he was registered as Z’s father in Minnesota. The father has since returned to this country, bringing Z with him.
The legal effect of this is that the surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in the UK as being his mother. By the same token, whatever his legal rights in Minnesota, the father has no parental responsibility for Z in this country. The only two ways in which the court could secure the permanent transfer of parental responsibility from the surrogate mother to the father is by way of a parental order or an adoption order. The father would obviously far prefer a parental order.
The surrogate mother had of course agreed to this but the problem for the court was that under Section 54 of the Human Fertilisation and Embryology Act an application for a parental order must be made by two people. Last year the father sought to persuade Munby P that section 54 could be “read down” in accordance with section 3(1) of the Human Rights Act 1998 so as to enable a parental order to be made on the application of one person (Re Z (no.1)  EWFC 73,  1 WLR 4993). Applying the principles expounded by the House of Lords in Ghaidan v Godin-Mendoza  UKHL 30,  2 AC 557, Sir James held (at paras 36-39) that section 54 could not legitimately be “read down” in this way.
From the legal limbo in which Z’s father found himself, he relied upon the Convention in this hearing to apply for a declaration of incompatibility in respect of the offending provision. The essence of the father’s argument was that the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people was a discriminatory interference with a single person’s rights to private and family life, which is therefore inconsistent with articles 8 and 14 of the Convention. He relied upon a number of authorities in support of his case based on Article 8 including the important decisions of the Strasbourg court on 26 June 2014 in the two linked cases of Mennesson v France (Application no. 65192/11) and Labassee v France (Application no. 65941/11). Central to his argument in relation to article 14 was the decision of the House of Lords in In re G (Adoption: Unmarried Couple)  UKHL 38,  AC 173.
The Secretary of State for Health conceded that Section 54 was incompatible with Article 14 taken in conjunction with Article 8 of the Convention. The Secretary of State pointed out in his statement that there was no Convention right, whether in Article 8 or elsewhere, to undertake a surrogacy arrangement, furthermore that Article 8 did not entitle a person to any particular method of obtaining legal recognition of the parent-child relationship following that arrangement. However, the difference in treatment imposed by Section 54, on the sole ground of the status of the commissioning parent as a single person versus being part of a couple, could no longer be justified within the meaning of Article 14. As Sir James emphasised,
The Secretary of State does not accept that there is any incompatibility with article 8 taken alone. The concession is that the relevant provisions are incompatible with article 14, taken in conjunction with article 8. As it was put in the letter, “This is in reality, a discrimination case. That is the basis of the concession.
The judge was therefore satisfied that an order for a declaration of incompatibility should be made. However he did not accept the applicant’s argument that the court should go further and elaborate on ways in which the discriminatory effect of the present litigation could be cured. Secondly, he agreed with the Secretary of State’s observation that this is an area of social policy in relation to a matter – surrogacy – which is controversial. It is constitutionally a matter for the legislature to determine its response.