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Judge considers human rights in ‘tragic’ surrogacy case

By 28 August 2020News

In a precedent-setting case, a widow has been declared the legal parent of a surrogate child.

The case, Re X (2020), concerned a couple referred to in the judgement as Mr and Mrs Y. They wanted children but had been unable to conceive, and several rounds of IVF had also failed. They began to consider surrogacy and were eventually introduced to a second couple, Mr and Mrs X, who agreed to enter a surrogacy agreement with them. As surrogacy for profit is not legal in the UK, this would have been a personal arrangement between the two families.

An embryo was fertilised using gametes from Mr Y and Mrs X, then transferred into the latter.

The to couples remained in close contact as the pregnancy progressed. Unfortunately, Mr Y died “tragically, and without warning” in the fifth month of the pregnancy. After the child, ‘X’, was born, Mrs Y began to raise her as a solo parent. She then applied for a “parental” order, doing so jointly on behalf of her late husband.

Under English law, the birth mother remains the legal parent of surrogate children until the status of parenthood is transferred by legal order, which are issued by judges.

Applying for a parental order had of course been the couple’s plan all along, before circumstances intervened.

But the death of Mr Y presented presiding judge Mrs Justice Theis with a problem. She explained:

“Whilst all the welfare instincts of this court point towards such an order being made, it is necessary for each of the relevant requirements in section 54 of the Human Fertilisation and Embryology Act 2008… to be met, which, for reasons that will become clear, is not straightforward as the circumstances in this case have not arisen before, or been contemplated.”

Section 54 of the Human Fertilisation and Embryology Act sets out the required conditions for granting a parental order to a couple or a single applicant. As Mr Y was deceased, a number of the conditions were not met by Mrs Y’s application – for example, that:

“…the gametes of at least one of the applicants were used to bring about the creation of the embryo”

Or that:

“…the child’s home must be with the applicants”

Mrs Y explained in a statement accompanying the application:

“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. We have been through so much for so many years…The fact that [Mr Y] has died should not change anything. 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.”

She argued that the court should take an approach to the issue that was in keeping with the spirit of the legislation without being strictly literal. Doing so would be in line with the European Convention on Human Rights.

Mrs Justice Theis agreed that Articles 8 and 14 of the European Convention on Human Rights applied to the case. Article 8 protects the right to a “private and family life”, while Article 14 concerns freedom from discrimination. She explained:

“X was not able to establish a family life with her biological father due to his premature death…The State has a responsibility to ensure that it respects X’s right to a private life and that extends to ensuring she is provided with recognition of her identity as the child of her deceased father.”

She quoted now retired senior judge Sir James Munby’s ruling in an earlier case, in which he had noted that the Article 8 encompassed recognition of a person’s identity within a family.

In addition, parental orders went, explained Sir James:

“…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.”

Mrs Justice Theis explained:

“Article 14 is also engaged [relevant] on the grounds that X’s Convention rights should be secured without discrimination of any ground, including birth or other status. Here X is not able, without a parental order being made, to have a birth certificate that reflects the relationship and connection that she has with Mr and Mrs Y as her parents, solely by virtue of the circumstances of her birth through surrogacy.”

She therefore agreed that section 54 could reasonably be interpreted in a way that confirmed with the Convention but was not a literal reading. Other conditions listed in section 54 were met and Mr and Mrs Z were fully in support of the application. The Judge therefore granted a parental order to Mrs Y and her late husband, stating:

“X’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.”

The case is believed to be the very first in which the intended legal father of a surrogate child had died before the birth.

Read the full ruling here.

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