Set against what Mrs Justice Theis recognises as a “difficult and tragic background”, Re X  EWFC 39 marks the first case in which the Court considered an application for a parental order, where the intended father died during a surrogacy pregnancy. Whilst all the welfare instincts of the Court seemed to point towards the parental order being made, Mrs Justice Theis was compelled to consider each of the requirements under section 54 Human Fertilisation and Embryology Act 2008 (HFEA), against the backdrop of the European Convention of Human Rights.
After facing difficulties in being able to fulfil their wish of starting a family, Mr and Mrs Y were introduced to the respondents, Mr and Mrs Z and the parties mutually agreed to enter into a surrogacy agreement in 2017. The embryo was created using the gametes from Mrs Z and Mr Y, and was transferred to Mrs Z in May 2018. Throughout the duration of the pregnancy, the parties remained in “very close touch and their relationships inevitably grew and became stronger.” It was always the intention that Mr and Mrs Y would apply for a parental order after the birth of the child.
Mr Y died suddenly in September 2018, when Mrs Z was five months pregnant. Mrs Z gave birth to X in early 2019 and X has been in Mrs Y’s care ever since. In accordance with the relevant legislation, Mrs Y made an application for a parental order within 6 months of X's birth, as was intended by the parties when they entered into the surrogacy agreement in 2017. It is emphasised in the judgment that the application had the full and unconditional support of Mr and Mrs Z.
The difficultly that Mrs Justice Theis faced in this case was that Mrs Y brought this application jointly on behalf of herself and her late husband. However, it is well-established that the Court must be satisfied that each of the relevant requirements set out in s 54 HFEA are met and that an order will meet the life-long welfare needs of the child.
The primary focus of Mrs Y’s case was on s 54 (1), (2)(a), (4)(a) and (5) of HFEA, which, on strict reading of the legislation were not met, on the basis that Mr Y had died prior to the birth of X. Mrs Y invited the court to ‘read down’ the requirements, to ensure compatibility with Convention rights, arguing that such a course would be “justified and proportionate”, recognising the unique significance of parental orders, highlighted by Munby P in Re X  EWHC. The argument premised on the fact that granting a parental order to Mr and Mrs Y “would not offend public policy and would 'go with the grain of' the legislation.”
Mrs Justice Theis acknowledged that X is unable to establish a family life with Mr Y due to his premature death. However, she draws upon Munby P’s judgment in Re X  EWHC, that Article 8 rights also refer to private life, recognising that “a parental order…has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.”
X's right to a private life extends to ensuring she is provided with recognition of her identity as the child of her deceased father. X’s birth certificate named Mr Z as her father, a man with whom she has no connection as her father. At paragraph 90 of her judgment, Mrs Justice Theis considers that a failure of the law to recognise X’s connection with her biological father, Mr Y, amounts to a breach of her article 14 right to enjoy her article 8 rights without discrimination on the grounds of birth. Further, Mrs Justice Theis considered Mrs Y's own article 14 rights to be engaged, as she is discriminated against based on her relationship status as a widow, rather than being married.
Mrs Justice Theis surmises that “there is no reason to believe Parliament either foresaw or intended the potential injustice which would result in this case if a parental order [could not] be made”, setting out her reasoning at paragraph 93 and 94 of the judgment. She emphasised that a parental order is the “only order that would confer joint and equal parenthood on Mr and Mrs Y”, in accordance with the intentions of the surrogacy agreement. She considered that only a parental order would ensure “X's security and identity in a lifelong way respecting both her Article 8 and 14 rights.” However, without the 'reading down' required by s3, she recognises that s54(1), (2)(a) (4)(a) and (5) could prevent a parental order being made.
With this in mind, Mrs Justice Theis ruled that in this case, granting the parental order would not be incompatible with the ‘underlying thrust of the legislation being construed' and the policy and legislative aims of the legislation would remain intact. She was satisfied that the s54 criteria were met in the light of the Convention compliant reading and a parental order would meet X's lifelong welfare needs, in accordance with s1(4) ACA. As such, a parental order was made to Mr and Mrs Y, in respect of X.
Although many of the current issues with the legal position regarding surrogacy were raised by the Law Commission ahead of their consultation into the issue last year, there are still many issues that the Law Commission will have not foreseen. For the time being, it is comforting that Mrs Justice Theis adopted a pragmatic and human approach in this case, drawing upon the social and emotional benefits and the day-to-day realities of everyday life, to read down s54 HFEA. There is a clear understanding that making an order was the only way to truly recognise X's reality in a transformative way, as the child of her parents, Mr and Mrs Y.