The recent case of X, Re  demonstrates yet again the creative manner in which the Courts have been required to interpret section 54 of the Human Fertilisation and Embryology Act 2008 (the Act), in making a parental order.
The case involved a child born following a domestic surrogacy arrangement in the UK. The intended parents (Mr and Mrs Y) had been on a difficult and emotional journey having undergone several unsuccessful IVF treatments, and as a result they were advised to consider surrogacy. In 2017, Mr and Mrs Y entered into a surrogacy agreement with a surrogate and her husband (Mr and Mrs Z). The surrogacy agreement recorded the intention of all the parties that Mr and Mrs Y would apply for a parental order after the child's birth.
A parental order is a court order which makes the intended parent (or parents), the legal parents of the child and permanently extinguishes the parenthood of the surrogate and her civil partner / spouse. In the absence of a parental order, the surrogate and her civil partner / spouse remain the child's legal parents. Once a parental order has been made, the birth is re-registered to record the intended parents as the legal parents, and a new birth certificate is issued. In order for a parental order to be made, the Court must be satisfied that the criteria of section 54 of the Act are met.
Mr and Mrs Y went through two embryo cycles using eggs donated by a friend, however both were unsuccessful. Mrs Z then offered to use her own eggs. Having received advice from a licensed fertility clinic, they decided to proceed using gametes from Mrs Z and Mr Y. Mr and Mrs Y and Mr and Mrs Z remained in close touch throughout the pregnancy and their relationships grew and became stronger.
Tragically, when Mrs Z was 5 months pregnant, Mr Y unexpectedly died. Mrs Y was present at the child's birth and the child went immediately into her care. Mrs Y then sought to make her application for a parental order with the full support of Mr and Mrs Z.
Section 54 of the Act does not permit a single applicant without a genetic link to the child to apply for a parental order. Therefore, Mrs Y could not apply for a parental order as a single applicant. As a result, Mrs Y instead made an application for a parental order on her own and her deceased husband's behalf.
Whilst Mrs Justice Theis recognised that all the welfare instincts of the Court pointed towards making a parental order, the Court was still required to consider all of the requirements of section 54.
In the context of the application, Mrs Justice Theis was required to consider a number of cases in which the Court had made an Order by reference to the Human Fertilisation and Embryology Act, read through the "lens" of the Human Rights Act 1998. Mrs Justice Theis considered the case of A v P , in which she had "read down" the requirement of section 54 in order to enable a parental order to be made in circumstances in which the intended father had died unexpectedly after the application was issued, but before the parental order was made. In that case the question arose as to whether, at the time of the intended father's death, there was a cause of action vested in him to apply for a parental order in respect to the unborn child.
In the present case, Mrs Justice Theis recognised that no alternative order would properly and accurately reflect the child's identity and that a failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement, would amount to a breach of her Article 8 rights (respect for private and family life) and Article 14 rights (protection from discrimination). Mrs Justice Theis also considered Mrs Y's Article 14 rights to be engaged as she was discriminated against based on her relationship status as a widow, rather than being married.
Mrs Justice Theis stated:
"The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.
The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X's security and identity in a lifelong way respecting both her Article 8 and 14 rights."
Mrs Justice Theis confirmed that the application could be made by Mrs Y on behalf of Mr Y and herself, and she was satisfied that the relevant section 54 criteria were met in light of the Convention complaint reading. Mrs Justice Theis concluded by stating that the child's "welfare requires the court to make a parental order, as only that order will recognise X's reality in a transformative way, as the child of her parents, Mr and Mrs Y."
Whilst the Courts continue to grapple with what many consider to be outdated legislation in this area which is no longer fit for purpose, the outcome of the Law Commission's Consultation is eagerly awaited. Its final recommendations and a draft bill are expected in early 2022. In the present case, Mrs Y was unable to apply for a parental order as a single applicant as she had no genetic link to the child. The Law Commission's Consultation paper on surrogacy reform (Building families through surrogacy: a new law) recognises that there are strong arguments that a genetic link need not be a requirement for a parental order. The Law Commission's provisional proposal is that the requirement for a genetic link should be removed in cases of medical necessity, albeit limited to domestic cases. It is unclear whether such a proposal would have assisted in the present case until the term "medical necessity" is properly defined in the final recommendations. However, pending the outcome of the Law Commission's final recommendations, the Courts will need to continue to interpret the existing legislation in a manner which properly protects the interests of the intended parents, surrogates and the children born to such arrangements.