Surrogacy law and the development of the ‘creative family court’

The challenge faced by the Family Court in the UK is to apply a standard set of rules to each family’s individual situation. This is difficult, particularly in a world of blended and alternative families, where there is no “normal”. It requires the legal profession to think outside the box, and pushes the judiciary to interpret, stretch and shape the law in such a way that protects the welfare of the children at the heart of the application.

Surrogacy cases are a prime example of where a flawed legal framework means that the legal status of a child at birth does not reflect the shared goal and intention of intended parents and surrogates.

The case of Re X (A child) (Parental order: Surrogacy arrangement) [2020] EWFC 39 is yet another surrogacy case in which a completely new and previously unconsidered scenario came before the court requiring a decision to be made.

Unexpected death led to considerable complexities

The background to the case is that, having faced difficulties starting a family, Mr and Mrs Y entered into a surrogacy agreement in the UK with Mr and Mrs Z. They conceived in May 2018 at a licensed fertility clinic using Mr Y’s sperm and Mrs Z’s eggs. However, tragically and unexpectedly, five months into the pregnancy, Mr Y died. Mrs Z gave birth in early 2019, and child X has been in the care of Mrs Y since then.

The legal position at birth was that Mrs Z was recognised as X’s legal mother (as the woman who gave birth), and Mr Z as the legal father (as he was married to Mrs Z at the time of conception, as set out in s35 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008)). The intention of all the parties, having entered into a written surrogacy agreement prior to conception, was that Mr and Mrs Y would apply for a parental order (under s54 HFEA 2008) following the child’s birth. The effect of the parental order would have been that Mr and Mrs Z’s status would be extinguished and parentage would be reassigned to Mr and Mrs Y, with a birth certificate being re-issued recording them as X’s legal parents.

This should have been a simple application, dealt with by the parties at their local family court. However, Mr Y’s sudden death complicated matters and the case ended up in the Royal Courts of Justice before Mrs Justice Theis due to the complexities involved in finding an appropriate solution for X.

Intended mother prevented from applying for parental order as a sole applicant

A nuance of the case is that Mrs Y was not able to apply for a parental order as a single applicant. While the law was changed on 3 January 2019 to allow single parents to apply for a parental order (following the declaration of incompatibility made in the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam)), Mrs Y was not eligible to apply using the new s54A HFEA 2008. As the couple used Mrs Z’s eggs to conceive, Mrs Y did not have a biological connection with X, as is required under s54A(1)(b) HFEA 2008, and was therefore unable to apply to secure her status as X’s mother.

In considering the other options available to her, perhaps the most straightforward option for Mrs Y would have been to make an application for an adoption order. This would have meant that Mr and Mrs Z’s status as X’s legal parents was extinguished, and would have recognised Mrs Y as X’s legal parent. However, it would not have placed any recognition on Mr Y – X’s intended and biological father. It is clear from the excerpts of Mrs Y’s touching evidence, as quoted in the court’s judgment, that it was of crucial importance to her to have Mr Y recognised. She therefore took steps to apply for a parental order jointly with her deceased husband.

Need for court to “read down” requirements

The main submissions in the case centred on s54 HFEA 2008. It was clear that Mrs Y did not meet the gateway criteria, and it was therefore necessary for the court to consider the extent to which it is possible to read down the requirements so that they are compatible with the Convention rights (under s3 Human Rights Act 1998 (HRA)).

There have been a number of cases in which the requirements under s54 HFEA 2008 have been read down, and perhaps this in itself is sufficient evidence of why reform is so urgently required when it comes to surrogacy law in the UK. These cases are:

1. A v P [2011] EWHC 1738 (Fam) – In this case, the intended father died unexpectedly after the intended parents application had been issued, but before the parental order was made. To enable the court to make a parental order, Theis J read down the requirements in ss54(4)(a) and 54(5) 2008. These requirements were that the child’s home should be with the applicants at the time of the application and the making of the order, and further that at the time of the making of the order both the applicants must have attained the age of 18. Theis J made a parental order to “protect the identity of (the child) and the family unit in accordance with Article 8” (ie the right to respect for family life).
2. Re X (A child) (Surrogacy: Time limit) [2014] EWHC 3135 (Fam) – This case considered the six-month time limit which is set out in s54(3) HFEA 2008. Munby P determined that a parental order could be made and while his main analysis was based on the principle in Howard v Bodington (1877) 2 PD 203, he also explained that this decision was “amply justified having regard to the Convention”. His statement in paragraph 56 of his judgment – “slavish submission to such a narrow and pedantic reading would simply not give effect to any result that Parliament can sensibly be taken to have intended” – is demonstrative. It highlights the importance in these cases of looking to what Parliament must have intended and the underlying policy/thinking behind the legislation.
3. Keeping this in mind, the next case in which these principles were considered was Re Z [2015] EWFC 73. This case involved a single father asking the court to read down s54(1) HFEA 2008 so that the reference to “two applicants” was in fact a reference to “one or two applicants”. Munby P refused to do that on the basis that it was clear that Parliament had taken a deliberate policy decision to exclude single parents, and that the requirement for two applicants was a key feature of the “pith and substance” of the legislation.

The father in that case subsequently went on to apply for a declaration of incompatibility, which was granted (albeit in the end it was made with the government’s agreement) and this went on to Parliament making a remedial order and commenting that they propose to remove all requirements of relationship status. The submissions made in this case were that this clearly signals that the will of Parliament is to ensure that the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status.

Judicial gymnastics and s54 of the HFEA

Therefore the court did not need to be concerned about the judgment of Re Z [2015] as while in that case making a parental order would have gone against the “pith and substance” of the legislation, in this case it would “go with the grain” of the legislation.

The question was whether the court could exercise the same judicial gymnastics as shown in previous cases to read the relevant sections of s54 to include the additional underlined provisions as follows:

Section 54(1) On an application made by two applicants (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 s54(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…

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(4) At the time of the application and the making of the order:

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

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

Theis J was able to conclude that Article 8 was engaged on the basis that 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. Further to this, Article 14 was engaged because, without a parental order being made, X was not able to have a birth certificate which reflects the relationship and connection that she has with her parents, solely by virtue of her birth through surrogacy.

Parental order recognises X’s reality in a “transformative” way

Theis J determined that Parliament could not have intended a child in X’s position to be excluded from such recognition, and that this scenario simply had not been considered when the law was originally drafted. Further to this, the reading down proposed does not go against the “grain of the legislation”, with Parliament recently signaling (when considering the declaration of incompatibility made by the court in Re Z (No 2)) that it seeks to ensure that the law does not discriminate based on relationship status.

It was also relevant that had X been born in any other circumstance, naturally to Mr and Mrs Y or by assisted conception, she would have had a legal connection with Mr Y, there being specific provision in ss39-40 HFEA 2008 which provides for recording fathers on birth certificates where the embryo transfer/artificial insemination takes place posthumously.

Using the above analysis, the court was able to read down the law in the way that was proposed, and in doing so grant a parental order to both Mr and Mrs Y, recognising X’s reality in a “transformative way”.

At least two more years of judicial creativity?

The Law Commission is currently undertaking a review of the law on surrogacy, and one of its proposals is a new pathway for surrogacy in the UK. The aim of this is that a route is created through which the intended parents become the legal parents at the point of birth, reflecting the intentions of all those involved. Provided the intended parents and surrogate have medical checks, criminal records checks, independent legal advice, implications counselling, enter into a written surrogacy agreement and undergo a pre-conception assessment of the welfare of the child, the intended parents will be recognised as the child’s legal parents from birth.

This would have significantly simplified matters for Mrs Y in this case. However, until we see actual reform (the Law Commission does not expect to produce its final report and draft Bill until early 2022), families created through surrogacy will have to endure a limbo period between conception and a parental order being made. A heavy reliance must therefore be placed on creative judges to stretch the current law to encompass scenarios which had never been envisaged, and to attempt to achieve a result within the spirit of the legislation as a whole.