Re X [2020] and the Court’s continued legal creativity in surrogacy cases

22nd June 2020 Family Law

The recent decision of Re X marks a further departure from the strict application of the legal requirements for a parental order, and a more flexible, creative interpretation of the law to fit the difficult circumstances on the facts. The further ‘chipping away’ at the mandatory “s54” requirements marks a further example of why a wholesale update of the law is required.

In England & Wales, Intended Parents must apply for a transfer of legal parenthood by way of a Parental Order after the baby has been born. To qualify for a Parental Order, the intended parent/parents, need to satisfy the qualifying criteria set out in section 54 of the Human Fertilisation and Embryology Act 2008. These criteria are described fully here. It is only if those criteria are met that a Parental Order can be made.  Sadly, there have been cases where it has not been possible for legal parenthood to transfer from the surrogate (and if applicable, her spouse) to the intended parent(s), because one or more of the criteria cannot be met, but the Courts are demonstrating more than ever a willingness to find a creative approach to the interpretation of the law to prevent that from being the case in all but the most difficult of circumstances. The result has been a gradual weakening of the mandatory nature of the requirements meaning that the law, as strictly written, no longer truly represents the reality ‘on the ground.’

The ‘Section 54 criteria’ have been criticised by academics, practitioners and judges for as long as the law has been in force. In some cases, the Court has used its interpretative powers to bend the criteria wide enough to allow some perfectly sensible and appropriate applications, but which arguably fall outside of the strict rules. In others, the Court has found the Section 54 to be so restrictive that it was incompatible with human rights, placing the onus on Parliament to change them (which it eventually did – in order to allow single applicants for example), but there is only so far the legislation can be corrected piecemeal, before it needs to be re-written.

The case of Re X focussed on the complications which arose after the Intended Father died unexpectedly before the PO application could be made.

The intended parents were Mr and Mrs Y. Their child – referred to as X - was conceived via surrogacy using Mr Y’s sperm and a donor egg. The surrogate was married. Therefore, upon birth, the legal parents were the surrogate and her husband. Very sadly, Mr Y died suddenly during the pregnancy.

Mrs Y applied for a Parental Order, asking that the application in fact be granted jointly not only to her, but also to her deceased husband, to create the legal relationship between he and X, even though he had died. Without a joint order, Mr Y would not be on X’s birth certificate and would not be the legal father. Even though Mr Y had died, he remains a central part of X’s identity. Further, Mrs Y was unable to qualify for a parental order as a single applicant, because she was not biologically related to the child.  

The surrogate and her husband supported an application and order being made in favour of Mrs Y and her husband jointly. Due to the legal complexities, X was legally represented in the proceedings, and X’s litigation guardian also supported the order being made, the issue was how the mandatory requirements could be interpreted in way that allowed it to happen and indeed whether it was possible to do that without reaching a stage whereby the court was, in effect, simply ignoring the legal requirements.

The problems were that the Section 54 Criteria requires that:

  1. The gametes of at least one of the applicants were used to fertilise the embryo (Section 54(1)(b)). In this case, the gametes belonged to the intended father, who had deceased and if Mrs Y were a single applicant, she would not qualify;
  2. Where an application is made jointly by 2 people, they must be in an enduring family relationship, but sadly following Mr Y’s death, there was a technical debate as to whether that could be said to persist;
  3. The child must have their home with the applicants (expressed as a plural) when the application and order are made;
  4. The applicants must be at least 18 years old. The legislation did not provide for a situation when an applicant had died.

This was an otherwise straightforward surrogacy arrangement which, for the reasons above, seemed initially to fall through the holes in the criteria, leaving Mrs Y, X and the surrogate in limbo. The Court’s decision was binary: if the criteria could not be met (even within the context of the Court’s creative interpretation), the Order could not be made, however much the Court may want to do so on a human level.

The Judge in this case looked at alternatives. None of them were attractive. An order that X should live with Mrs Y would give her parental responsibility until X was 18, but it would not sever the parental ties with the surrogate and her husband. Mrs Y could potentially apply for an adoption of X as a single applicant, but the parental link with Mr Y would not be protected and in any event, adoption does not reflect the truth of X’s conception and place in the family unit.

Applying some legal creativity, the Court was able to resolve the matter. 

The Court considered the human rights of X and Mrs Y. It found that a failure to protect X’s connection with her father would discriminate against her right to enjoy her private and family life on the basis of her circumstances. Her status should be no different to what it would be had she been born in any other way. Arguably also, Mrs Y would have been subject to similar discrimination on the basis of being a widow. Both the right to enjoy a private and family life, and the right to do so without discrimination, are protected human rights. It was therefore resolved that the s54 criteria should be read in a way which allowed them to reflect the human rights of those involved.

So far as it is possible to do so, the Court can read and give effect to legislation in a way which is compatible with the Human Rights Act 1998. The Court felt it was able to “read down” the Section 54 criteria beyond its strict interpretation. That meant the Court was satisfied it could interpret the legislation as follows:

  1. An application could be brought on behalf of both intended parents by a surviving applicant when the other had died;
  2. It suffices for those intended parents to have been married or in an enduring family relationship immediately prior to the death of the deceased applicant;
  3. In the event one parent had died before the application could be brought, that the child’s home is with the surviving applicant; and
  4. That the deceased applicant had attained the age of 18 after his or her death.

Happily, the Court granted the parental order.

This is another case in which the Court had to rely upon ‘legal gymnastics’ to achieve justice after complexities arose after a surrogacy arrangement. It is fortunate for Mrs Y that it was possible on this occasion. This case still adds to the growing collection showing the limitations of the Section 54 Criteria as currently drafted and how the application of the law is slowly drifting away from the technical requirements. It should not be necessary for Intended Parents to have to go through what can be several years of complex and stressful litigation, and uncertainty, to resolve such issues when they arise and the law needs to reflect the needs of the growing numbers who now embark on surrogacy to expand their family. It is reassuring that the courts want to find a resolution to these cases, to give effect to what was intended and to avoid life-long legal complications, but many involved in surrogacy cases look forward to a situation whereby such creativity is not needed, and solutions can be more straightforward.

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Joe Ailion is a Solicitor located in Manchesterin our Family department

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