Surrogacy: The courts flexible approach to the granting of Parental Orders

Simran Gupta explores two surrogacy cases that have paved the way for change.

There have been two recent cases of note which have once again varied the landscape within which the court considers the criteria which must be satisfied if the court is to grant a Parental Order. 

These criteria are set out at section 54 of the Human Fertilisation and Embryology Act 2008 and according to the legislation are “mandatory”. However, as we have seen time and time again, the courts have taken a broad brush approach when interpreting this criteria so as to bend the rules in favour of granting the Parental Order.

Surrogacy Case one - X [2020]

The first of these two cases was Re X [2020]. This is an extremely sad case wherein Mr and Mrs Y entered into a domestic surrogacy arrangement with Mr and Mrs Z. Tragically, Mr Y died during the pregnancy. Following X’s birth she was cared for by Mrs Y.

Mrs Y sought a Parental Order to be granted to her and her deceased husband. Mr Y was X’s biological and intended father and Mrs Y felt that it was of upmost important to X that she understood the family within to which she was born and understood the importance of Mr Y in her life. Mr and Mrs Z fully supported the application. If the Parental Order was not granted to Mr and Mrs Y, Mr Y would not be named on X’s birth certificate as her father and more importantly, as Mrs Y had no biological relationship to X, she would be unable to apply as a single person, therefore leaving her without a satisfactory remedy.

However, this application was not without problems, as Mrs Y was unable to satisfy, on the face of it, all the section 54 criteria, because:

  1. Section 54(2) requires Mr and Mrs Y to be husband and wife, civil partners or two persons living as partners in an enduring family relationship. Since Mr Y’s passing, Mrs Y was a widower and therefore their relationship status no longer fell within the criteria.
  2. Section 54(4)(a) requires X’s home to be with Mr and Mrs Y at the time the order is made. Since Mr Y’s passing during the pregnancy, X’s home was with Mrs Y only.
  3. Section 54(5) requires Mr and Mrs Y to have attained the age of 18 at the time the order is made. Mr Y no longer could be attributed an age.

The court heard submissions from those representing Mrs Y and was persuaded that section 3 of the Human Rights Act gave it the power to interpret legislation so that it was compatible with the Human Rights Act. The court accepted that both Mrs Y and X had a right to enjoy their family life without discrimination and therefore it was able to interpret the section 54 criteria in such a way as to ensure that Mrs Y’s and X’s human rights were protected, and did so on the basis of the situation prior to Mr Y’s death wherein:

  1. Mr and Mrs Y were husband and wife thereby satisfying section 54(2).
  2. Mr and Mrs Y had intended X’s home to be with them and it had been with Mrs Y since her birth thereby satisfying section 54(4)(a).
  3. Mrs Y was aged over 18 and Mr Y had been at the time of his death thereby satisfying section 54(5).

The court granted the Parental Order to Mr and Mrs Y and the road has therefore been paved for future applications where, tragically, one intended parent may pass away prior to the birth of the child or the granting of a Parental Order by the court.

Surrogacy Case two - A [2020]

The second case, Re A [2020], also placed a similar reliance on section 3 of the Human Rights Act to enable the court to interpret the section 54 criteria in such a way as to grant the applicants a Parental Order.

In this case, A was born via a surrogacy arrangement. A’s biological parents were M and F and they were also her intended parents. M and F separated after the surrogacy arrangement had been entered into but before the embryo was transplanted into the surrogate and the pregnancy confirmed.

A was cared for by M following his birth and eventually M applied for a Parental Order as a single parent. F’s position being that he did not wish to have any involvement in A’s life. Unfortunately, this application was made before s.54A was introduced into the Human Fertilisation and Embryology Act 2008, and therefore at a time when individuals were not eligible to apply for a Parental Order. The application was stayed until 2019 when S54A came into force.

By the time the application was restored before the court, F’s position had changed and so he and M made a joint application for a Parental Order. Again, section 54 had to be satisfied for the application to be successful however, this raised 3 legal issues for the court to consider:

  1. Section 54(3) requires that an application for a Parental Order be made within 6 months of the child’s birth. This application had been made some two years later.
  2. Section 54(4)(a) requires A’s home to be with M and F at the time the order is made but M and F were now separated and living in separate homes.
  3. Section 54(2) requires M and F to be husband and wife, civil partners or two persons living as partners in an enduring family relationship. This was no longer the case as the parties were separated.

In respect of the application being made after 6 months, the court relied on case law to determine that the 6 month time limit was not determinative to the granting of the order and that the order could be granted after this time.

In respect of the two remaining legal issues, the court again interpreted the section 54 criteria with a human rights lens and determined that:

  1. A’s family life is with M and F, they both intend to play an active role in A’s life and they are both committed to his welfare and his future. On this basis the court determined that M and F were in an ‘enduring family relationship and therefore, Section 54(2) was satisfied.
  2. A’s home was with M and F regardless of the fact they lived in separate homes. The judge determined that the term ‘home’ should be widely interpreted and as A would be cared for by M and F in their respective homes, A’s home was with M an F. Therefore, Section 54(4)(a) was satisfied.

The court granted a Parental Order to M and F on this basis and this case has paved the way for parties to seek Parental Orders in situations where their relationship has broken down before pregnancy is confirmed.

These cases show that the court continues to interpret the Section 54 criteria in a very broad and flexible manner and will, where possible, find a way of granting a Parental Order. However, the continued bending and flexing of the criteria does strengthen suggestion that there needs to be a complete legislative overhaul of Section 54 and this was the basis of the consultancy paper produced by the Law Commission of England and Wales and the Scottish Law Commission. You can read more about this in Simran's previous article here - Surrogacy (a potential) new dawn.

Interested in reading more? Here's some further information related to this article:


Section 54 HEFA - https://www.legislation.gov.uk/ukpga/2008/22/section/54

Re X = http://www.bailii.org/ew/cases/EWFC/HCJ/2020/39.html

Re A - http://www.bailii.org/ew/cases/EWHC/Fam/2020/1426.html 

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