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Surrogacy in unusual circumstances: X, Re [2020] EWFC 39

Date:3 JUN 2020
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Head of Surrogacy, Adoption, Fertility & Modern Family

This case concerns a child (X) born via surrogacy in unusual circumstances. The child was conceived after a difficult and emotional journey for the intended parents (Mrs and Mrs Y) via IVF. An embryo was created using Mr Y’s sperm and an egg donor, and carried by a married surrogate (Mrs Z) in a domestic surrogacy arrangement. Tragically, and without warning, Mr Y, the intended father died 4 months before the child’s birth.

Mrs Y was not eligible to bring an application for a parental order, under section 54 Human Fertilisation and Embryology Act 2008 (HFEA), as a single applicant because she had no genetic affiliation to the child.

Mrs Y then took the unprecedented step of applying for a parental order jointly with her deceased husband, so that they could both acquire legal parenthood for the child and, therefore, both be included on the child’s birth certificate. This application, brought within the requisite six month limit, had the full support of the surrogate and her husband, Mrs and Mr Z, and the Children’s Guardian.

The case examined the scope of the Court’s jurisdiction to order a parental order, where the application is made by one intended parent, but on behalf of one surviving and one deceased intended parent (where the death occurred after the embryo using his gametes was transferred to the surrogate).

Mrs Justice Theis, sitting on 10 March and 20 May 2020, acknowledged that whilst all the welfare instincts of the court pointed towards a parental order being made, she nevertheless, had to consider the necessary requirements of s.54 HFEA 2008 as the circumstances of this case had never before arisen or been contemplated.

The intended mother wrote in her statement to the court that “It is incredibly important to me to apply for a parental order. It is not just for myself or for the respondents (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; … and the egg donor and the respondents (the surrogate and her husband), all gave so much to make this possible … She (X) deserves to have a parental order which recognises him as her father, and I hope that the court will find a way to make this possible.”

The submissions to the court, focused on inviting the court to “read down” s.54 HFEA via the lens of s. 3 of the Human Rights Act 1998 (“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”) namely:

  1. the requirements for two applicants (s.54(1)),
  2. the status of the applicants’ relationship (s 54 (2)(a)),
  3. the requirement for the child to have her home with the applicants at the time of the application and the making of the order (s 54 (4)(a)); and
  4. for the applications to be over the age of 18 years at the time of the making of the order (s 54 (5)).

The parties’ proposed the following additional provisions (underlined) to the s 54 (1), (2), (4) (a) and (5) as follows:

S 54 (1) On an application made by two applications (or on an application brought on behalf of two applicants who, but for the fact that one of the applicants has died after the conditions in s 54(1)(a) were met, would have met the requirements of s54(1)(b) and s54(2)), (“the applicants), the court may make an order providing for a child to be treated in law as the child of the applicants if

(a)  The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b)  The gametes of at least one of the applications were used to bring about the creation of the embryo, and

(c)   The conditions in subsections (2) to (8) are satisfied.

Section 54 (2) The applicants must be (or in the case of an application where an applicant has died were immediately prior to the applicant’s death).

(a)  Husband and wife,

(b)  Civil partners of each other; or

(c)   Two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other

Section 54 (3) – No amendment required

Section 54 (4) At the time of the application and the making of the order

(a)  The child’s home must be with the applicant’s (or in the case of an application where an applicant has died and the application is brought on his or his behalf by the surviving applicant, the child’s home must be with the surviving applicant), and

(b)  Either of both of the applicants must be domiciled in the United Kingdom or in the Channel Islands of the Isle of Man

Section 54(5) At the time of the making of the order both the applicants must have attained the age of 18 (or in the case where an applicant has died, the deceased applicant must have attained the age of 18 before his or her death)

Section 54 (6), (7) and (8) – no amendment required.  

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Theis, J reminded the parties that an application for a parental order is not discretionary, it is either granted or dismissed: there are no such range of orders which the court may identify as what is “fair and reasonable in all the circumstances of the case,” as in s 25 Matrimonial Causes Act 1973. Once the application is made and the s 54 criteria met, the court is bound to make the order if it meets the lifelong welfare needs of the child under s 1 Adoption and Children Act 2002. There is no alternative legislative scheme whereby Parliament intended to address the legal relationship of a child with his or her intended parents in circumstances where the intended parent, who has the biological relationship with the child, dies after the embryo transfer to the surrogate, in accordance with s 54, but prior to the making of a parental order. Furthermore, the person most affected by this particular lacuna is the child, X, itself.

The child’s legal rights to identity and family life were clearly established, therefore her rights under the Human Rights Act were found to be engaged.

These rights in these circumstances, required the court to consider whether s 1 Law Reform (Miscellaneous Provisions Act) 1934: “Subject to the provisions in this section, on the death of any person … all causes of action subsisting against or vested in him shall survive against, or as the case may be for the benefit of his estate” could be interpreted as being capable of recognising the deceased’s father’s claim, as an intended father, as existing at the date of his death. Or alternatively, if not, to read down the provision to include after “or vested in him” the words “including an application for a parental order where, but for death of the applicant after compliance with the provisions of s 54 (1) HFEA 2008 and before the birth of the child, the provisions of s 54 HFEA would otherwise be met.”

Theis, J. found that both Articles 8 (right to respect for private and family life) and 14 (protection against discrimination) were engaged, despite the child being unable to establish a family life with her biological father due to his premature death.

Theis, J dismissed the applicability of an adoption order, citing Munby J in (Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam)): “adoption is not an attractive solution given the commissioning father’s existing biological relationship with X. As X’s guardian puts it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X’s identity”.

Theis, J concluded that the reading down of the HFEA legislation would indeed provide the most appropriate order for a child born as a result of this type of arrangement, as this provision was specifically created for a child born as a result of a surrogacy arrangement such as in this case. There was no alternative order available to the court that could properly and accurately reflect X’s identity, including her relationship with her father:

  1. A child arrangements order or a special guardianship order, in favour of the intended mother, would result in her only securing parental responsibility limited to X’s minority, would not extinguish the child’s relationship with the surrogate and her husband and would leave X’s biological father remaining a stranger to the child.

     

  2. The intended mother could apply for an adoption order, but only as a single applicant, which although would give her the status of a legal parent, would not reflect X’s identity in relation to the child’s intended mother and father. Adoption would also create something of a “legal fiction”, as s 67 ACA 2002, states that the effect of an adoption order is such that the adopted person is to be treated in law as if born as a child of the adopter, which would not reflect the reality of the surrogacy arrangement entered into in this case.

Furthermore, Theis J found that, given the child’s connection with her biological father would have been safeguarded in any other birth circumstances (either naturally or by way of assisted conception), it would be discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise the child’s connection with her biological father as a result of her birth through a surrogacy arrangement, would amount to a breach of Article 14: the right to enjoy her Article 8 rights without discrimination on the grounds of birth.

Additionally, the intended mother’s Article 14 rights were engaged as she was potentially being discriminated against based upon her status a widow, as opposed to being married.

The consequences of not making a parental order in this case would mean:

  1. there would be no legal relationship between the child, X, and her biological father;
  2. X would be denied the social and emotional benefits of recognition from that relationship;
  3. X may be financially disadvantaged;
  4. X would not have the legal reality to match the day-to-day reality; and
  5. X would be further disadvantaged by the death of her biological father.

Accordingly, the only order that would confer joint and equal parenthood on the intended mother and the intended deceased father, is a parental order.

Theis, J found that reading down the provisions in s 54 (1), (2)(a), (4)(a) and (5) HFEA 2008 required to permit the parental order being made, was not incompatible with the “underlying thrust of the legislation being construed” and would be implied “go with the grain of the legislation”.

As a result of Theis, J’s reading down of the s. 54 legislation, the court did not need to address the Guardian’s submissions in relation to s. 1 LR (MP)A.

Having found that the s.54 criteria had been met, Theis, J. was obliged to consider whether the making of parental order would meet X’s lifelong welfare needs, having regard to the matters set out in (s 1(4) Adoption and Children Act 2002: the welfare checklist ). On this issue the Children’s Guardian reported, “[X] is flourishing in her mother’s care. It is therefore reasonable to assume that, if she could, she would say that she would want to live with and be cared for by her intended mother and remain in the home that has been provided for her by her biological father …X’s home is adorned with pictures … of her father … [X’s] identity will be truly informed and celebrated if she is permitted to remain with her intended mother. Moreover, a child’s birth certificate is a very powerful document; it is a tangible document which states very clearly who you are, where you come from and confirms the parentage and this will be essential for this child as she matures.”

Consideration of X’s welfare required the court to grant a parental order, as only that order would recognise X’s reality in a transformative way as the legal child of her parents, Mr and Mrs Y.

 

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