Surrogacy and human rights — Anna Dannreuther
26 June 2020
In Re X (Parental Order: Death of Intended Parent Prior to Birth)  EWFC 39 the Family Court read down section 54 of the Human Fertilisation and Embryology Act 2008 to enable a parental order to be granted where an intending parent died shortly before the child’s birth. This ensured the child’s Article 8 and 14 rights were protected, and prevented much emotional hardship for this family.
The case has already been cited in Re A (Surrogacy: s.54 Criteria) M  EWHC 1426 (Fam) as comprehensively setting out when a court may ‘read down’ the statutory criteria in section 54.
Parental orders – an introduction
Section 54 of the Human Fertilisation and Embryology Act 2008 enables two people to apply for a parental order over a child who has been born as the result of a surrogacy arrangement. A parental order transfers legal parenthood from the legal parents at the time of the child’s birth (usually the surrogate and – if applicable – her husband or civil partner) to the intended parents.
Parental orders are recognised as having a “transformative effect on the legal relationship between the child and the [intended parents]. The effect of the order is that the child is treated as though born to the applicants. It has a clear implication as regards the right to respect for family life under Article 8.” A v P  EWHC 1738 (Family), per Munby J .
In this case, Mr and Mrs Y had struggled to conceive their own children, having undergone several unsuccessful IVF treatments, including using eggs donated from a friend. They then considered surrogacy and eventually met Mr and Mrs Z with whom they entered into a surrogacy agreement. The agreement set out the intentions of the parties, including that Mr and Mrs Y would apply for a parental order after the birth of the child. The resulting embryo consisted of Mr Y’s sperm and Mrs Z’s egg. Mr and Mrs Y and Mr and Mrs Z became closer during the pregnancy and it remained all four of the parties’ intentions that Mr and Mrs Y become the legal parents of the child.
Tragically, five months into Mrs Z’s pregnancy, Mr Y died of heart failure. This left open the question of whether and how Mr and Mrs Y’s status as legal parents of the child could be recognised, given the requirements of the statute that “two applicants” make the application, amongst other things. The child, X, was born four months later. Mrs Y brought an application for a parental order on behalf of herself and her late husband. In her supporting statement, she said:
It is incredibly important to me to apply for a parental order. It is not just for myself or for [Mr and Mrs Z] (who have never intended to be her legal parents), but because I want her to have the surname [Y] and to have her father recognised. It will break my heart for her, and him, if it is not possible for [Mr Y] to be put on her birth certificate … The way [X] was conceived was all about love, and [Mr Y] is – and always will be – her daddy. I know, had he been here, that he would never have stopped talking about her, and she would have made him so proud. She deserves to have a parental order which recognises him as her father, and I hope that the court will find a way to make it possible.
Summary of the Law
Section 54 HFEA contains several requirements that must be fulfilled before a parental order can be granted. Those at issue were:
- The application must be made by two applicants
- The applicants must be husband and wife (or civil partners / in an enduring family relationship)
- The child’s home must be with the applicants at the time of the application and making the order
- Both applicants must be over 18 at the time of making the order
While the applicants would easily have satisfied the statutory requirements if Mr Y were alive, his untimely death frustrated the court’s ability to find these criteria clearly fulfilled.
Both the lawyers for the applicants, Natalie Gamble, and for the court-appointed guardian for the child, Ruth Cabeza, argued that the court should read down section 54 to ensure X’s human rights were protected. They referred to section 3 of the Human Rights Act 1998, which obligates courts to read primary legislation in a way that is compatible with Convention rights “so far as it is possible to do so”.
Theis J acknowledged that in certain circumstances section 3 required courts to “read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant”, per Lord Nicholls in Ghaidan v Godin-Mendoza  All ER (D) 210 at .
The question in this case was whether reading section 54 to enable a parental order to be made in respect of an intending parent who died before the child was born went with “the grain of the legislation”, or whether “the scale of what is proposed would go beyond any implication that could possibly be derived from reading the existing legislation” (per Lord Nicolls and Lord Roger in Ghaidan v Godin-Mendoza ,).
Section 54 – human rights ‘read downs’
Section 54 has been subject to numerous human rights read downs. In A v P  EWHC 1738 (Fam), Theis J had previously found that section 54 could be read down to allow an application where an intended father had died after the application had been issued, but before the order was made. In so deciding, Theis J focused on the transformative nature of a parental order, recognising that “no other order can give recognition to [the child’s] status in the same transformative way as a parental order can”, and that a parental order would “protect the identity of [the child] and the family unit in accordance with Article 8.”
Non-compliance with the six-month time limit for making an application was also held not to prevent a parental order being made in Re X (A Child) (Surrogacy: Time Limit)  EWHC 3135 (Fam).
While in the 2015 case of Re Z  EWFC 73, the court found it could not read down the ‘two applicant’ requirement to allow a single applicant to apply, that was because Parliament has expressly contemplated and rejected the idea that single applicants could apply. A declaration of incompatibility was therefore made, and Parliament subsequently enacted the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, permitting single applicants to apply.
The advocates submitted that, unlike in Re Z, there was no evidence that Parliament has ever considered the possibility of an intended parent dying during a surrogacy pregnancy, or that such a person should be excluded from obtaining a parental order. They further relied on the Joint Committee on Human Rights’ (JCHR) June 2018 report on the draft remedial order responding to Re Z, allowing single applicants to apply for parental orders, which had emphasised:
It is difficult to see the policy justification for seeking to distinguish between these different situations, or for placing such difficult emotional decisions on people with such significant potential impacts.
The two-applicant rule, the JCHR found, “seems to introduce a new version of discrimination based on a new category” without any justification. The advocates submitted this clearly signalled that the will of Parliament now seeks to ensure the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status. Further submissions were made drawing on provisions in the Human Fertilisation and Embryology Act 2008, whereupon legal parenthood status is acquired from the date of transfer of the embryo or artificial insemination.
It was submitted that these considerations supported the notion that it would go with the “grain of the legislation” to enable X to have Mr Y registered on her birth certificate.
Theis J found that Articles 8 and 14 of the ECHR were clearly engaged in this case. While X was not able to establish a family life with her biological father prior to his premature death, the court was required to protect her Article 8 right to recognition of her identity as the child of her deceased father. Theis J relied on Munby P’s comments on section 54 in Re X, where he said:
Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family. […] This case is fundamentally about X’s identity and his relationship with the commissioning parents. Fundamental as these matters must be to commissioning parents they are, if anything, even more fundamental to the child. […] A parental order, like an adoption order, has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious consequences. […] any application for a parental order implicates both the child’s right to ‘family life’ and also the child’s right to ‘private life’.
Theis J also reiterated that Article 8 rights include “the right to adequate legal recognition of biological and social ties” (citing D, G v ED, DD, A, B  EWHC 911 (Fam)). She noted that X’s birth certificate currently names an individual (Mr Z) with whom she has no connection as her father.
Article 14 was found to be engaged on the grounds that X’s Convention rights should be secured “without discrimination of any ground, including birth or other status”. Without a parental order, X is unable to have a birth certificate that reflects the relationship and connection she has with Mr and Mrs Y as her parents, solely because of the circumstances of her birth through surrogacy.
Theis J found that reading down the legislation “does not ‘go against the grain of the legislation’”. To the contrary – it provides the order that best meets a child born as a result of this type of arrangement.
Furthermore, no other order can accurately and properly reflect X’s identity. A child arrangements order or special guardianship order would grant Mrs Y parental responsibility limited to X’s minority, but it would not negate X’s legal relationship with Mr and Mrs Z and would result in her biological father being a “legal stranger to her”. An adoption order could only be applied for by Mrs Y acting alone. A failure of the law to recognise X’s connection with her biological father (by not granting a parental order) would amount to a breach of her Article 8 and Article 14 rights.
Theis J therefore read down the statute to enable the section 54 requirements to be met where an applicant dies after the child’s conception but prior to its birth, where they would have been met immediately prior to the death. The court also determined, in line with section 1 of the Adoption and Children Act 2002, that the order met X’s lifelong welfare needs.
This meant that the court did not need to consider the children’s guardian’s arguments about the applicability of section 1 of the Law Reform (Miscellaneous Provisions) Act 1934, and about whether that provision needed to be read down.
This is another instance of the Human Rights Act 1998 remedying a potentially large injustice for the family involved. As Theis J recognised, these were “compelling facts”. X had been living with Mrs Y since birth, who had provided her with a loving home, and her birth had been planned long ago by Mr and Mrs Y who intended to be her lifelong, loving parents. The surrogate parents, Mr and Mrs Z fully supported Mr and Mrs Y in becoming X’s parents.
The fact that Mr Z died shortly before X’s birth frustrated the applicants’ ability to comply with the technical requirements of section 54. However, their case clearly fell within the intended ambit of section 54 applicants, not least because they so clearly fulfilled the section 54 criteria prior to Mr Y’s death. The court rightly had no problem finding that reading down in this context went with – rather than against – the grain of the legislation, which was to protect commissioning parents against the unfairness of not having their legal parenthood and the family’s origins recognised in the form of a parental order.
Although this is a narrow development of the law, it is a nonetheless welcome one for those who find themselves in such tragic circumstances.
 There was a legal question as to the method by which this could be achieved, which was ultimately resolved by the court’s reading down of the legislation. See paragraphs , .