Modern Families and Surrogacy Arrangements – Part 5

Caselaw update

Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39

Facts:

• M and F enter into a straight surrogacy arrangement after years of struggling to conceive
• Parties set out that they intend to apply for a parental order and this is set out in the surrogacy agreement
• F dies of heart failure 5 months into the pregnancy of Child X
• M makes an application for a parental order on behalf of herself and F, despite being unable to meet the enduring relationship criteria
• M’s representatives asked for the legislation to be “read down” to comply with X’s human rights as the legislation had not contemplated an IP dying

Held:

• Child X’s Article 8 and Article 14 rights were engaged and it was her right to be recognised as the child of F
• Child X’s birth certificate cited the surrogate’s husband, who she has no relationship to
• Had the parent survived, the criteria for a parental order would have been met.
• The joint applicant rule was discriminatory on the grounds of relationship status, without justification
• The legislation was read down to enable the requirements of s.54 to be met where the child’s parent dies after conception but before birth

Re: A [2020] EWHC 1426 (Fam)

This case cited Re: X in the Judgement.

Facts:

• February 2017: Child A born from a surrogacy arrangement
• M and F were both biologically linked to the child
• M and F separated during the surrogate’s pregnancy with A
• M applied for A to be a ward of Court after the birth
• F confirmed he no longer wanted to be involved in the proceedings
• July 2017: M made an application as a single mother for a parental order, which did not meet the “enduring relationship of the IPs” criteria
• The Court stayed the application with liberty to apply for the stay to be lifted
• 3 January 2019: The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 introduced s.54A into the Human Fertilisation and Embryology Act 2008 to allow single parents to apply for parental orders
• The stay was lifted
• F changed his mind and decided he wanted contact with A and to be a parent
• 16 December 2019: M and F make a joint application over 2 years after birth

Issues for the Court:

1. Joint application was out of time
2. The legislation prescribes that the IPs should be in an “enduring relationship” and they were not together
3. The legislation provides that the child’s home should be with the applicants and they did not live together
4. Child A was only having indirect contact with F (with the intention this would progress to direct and staying contact)

The Court was required to “read down” 3 provisions of s.54 if the HFEA 2008 and consider Parliament’s intentions.

Held:

1. The lateness of the application did not bar the Court from making an order.
2. The Court were satisfied that the parties were in an enduring family relationship due to their commitment and dedication to A, even though they were not together.
3. Child A’s Article 8 and Article 14 rights were engaged and the Court were bound to consider the effect on the reality of the child’s life.
4. This concept of home was to be given a “wide and purposive interpretation” and the fact that A had a home with both IPs was sufficient.
5. The Court focused on the IPs agreement in respect of the future care arrangements for A, which were progressing towards staying contact.

The parental order was made as it was held to be “overwhelmingly in the welfare best interests of A”, which was referred to as the “ultimate test” in whether to make the order.   The Court were careful to reflect Parliament’s intentions.  “If a parental order is not made, the child is likely to be denied the social and emotional benefits of recognition of this relationship with his parents and would not have the legal reality that matches his day to day reality”.

These two cases highlight how the Court’s are willing to look at the spirit of the legislation rather than the technical letter of the law to protect children’s rights prevent injustice to a child born to a modern family.

The full article is published in New Law Journal. To read the full article, please click here.