Surrogacy: New Caselaw

The decision to enter into a surrogacy arrangement is one which none of the parties involved will take lightly. There is a myriad of ‘what ifs’ to be considered. The recent English case of Y v Z explores one of the worst ‘what ifs’ intended parents could imagine: what if one of us dies before we are able to confirm our status as our child’s parents?

The facts of the case in brief are as follows: Mr and Mrs Y entered into a surrogacy arrangement with Mrs Z, who was to carry their baby. The gametes of Mr Y and Mrs Z were used to create the embryo. Mr Y tragically died when Mrs Z was five months pregnant. Mrs Y was present when the baby, X, was born and has cared for her since then. Mr and Mrs Z were fully supportive of X being brought up by Mrs Y, and of Mrs Y’s application to have her, and her late husband, recognised as the legal parents of X. Unless and until a Parental Order was made Mr and Mrs Z would remain X’s legal parents however.

Mrs Y sought a Parental Order in her own right, and on behalf of her late husband, in her capacity as his executor.

The court was clear that X’s welfare would be safeguarded if the Parental Order was made. Before granting the Parental Order though the court had also to be satisfied that the requirements set out in sec.54 of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) had been met. On the face of it, certain requirements of the 2008 Act were impossible to satisfy as a result of Mr Y’s death - the 2008 Act provides that there must be a joint application, that the applicants need to be married, that the child’s home must be with the applicants and that both applicants need to be over 18. If there was a literal interpretation of the terms of the 2008 Act, the application would necessarily fail, as Mr Y had died before X was born.

There has been a run of cases though which have allowed the court, in some limited situations, to interpret the terms of legislation with some flexibility. The question here was whether this set of circumstances justified that approach: could the court interpret the terms of the 2008 Act sufficiently widely to allow a Parental Order to be granted when one of the intended parents dies before the baby is born? That all depended on section 3 of the Human Rights Act 1998.  

The Human Rights Act provides that where possible legislation needs to be interpreted - read and given effect to - in a way that is compatible with the Convention Rights that we have under the European Convention on Human Rights. In this case the court was satisfied that two Articles of the European Convention were relevant, and engaged, so that opened the door to the possibility of the court interpreting the 2008 Act widely and “reading down” the relevant provision in a Convention compliant manner.

The court concluded that Parliament’s intention could not have been that a child in X’s position would be precluded from being recognised as the child of Mr and Mrs Y and was prepared to interpret the 2008 Act widely and grant the Parental Order. In her judgment Mrs Justice Theis noted that: “The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.  The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X’s security and identity in a lifelong way respecting both her Article 8 and 14 rights.”

It needs to be borne in mind that this is a case from the England and Wales and is not binding upon the Scottish courts. Although the 2008 Act applies across the UK, it will be interpreted in the different parts of the UK according to our distinct legal systems. The Scottish courts would be slow to disregard a decision of Mrs Justice Theis, but it remains to be seen whether they will be quite as enthusiastic proponents of ‘reading down’ as the English judiciary have shown themselves to be in cases under the 2008 Act.

What the case undoubtedly does demonstrate in Scotland, as much as in England and Wales is that overhaul of our surrogacy legislation is necessary and the final report of the Law Reform Project being undertaken jointly by the Scottish Law Commission and the Law Commission of England and Wales, which is due is early 2022 can’t come soon enough.

The case deals with many important issues for intended parents and practitioners to consider - far too many to cover in this short post. For those interested in further commentary on the English Court’s judgement (which can be found in full here), have a look at the blog from our superb English colleague Natalie Gamble, who acted for the successful parent.

The facts of the case in brief are as follows: Mr and Mrs Y entered into a surrogacy arrangement with Mrs Z, who was to carry their baby. The gametes of Mr Y and Mrs Z were used to create the embryo. Mr Y tragically died when Mrs Z was five months pregnant. Mrs Y was present when the baby, X, was born and has cared for her since then. Mr and Mrs Z were fully supportive of X being brought up by Mrs Y, and of Mrs Y’s application to have her, and her late husband, recognised as the legal parents of X. Unless and until a Parental Order was made Mr and Mrs Z would remain X’s legal parents however.

Mrs Y sought a Parental Order in her own right, and on behalf of her late husband, in her capacity as his executor.

The court was clear that X’s welfare would be safeguarded if the Parental Order was made. Before granting the Parental Order though the court had also to be satisfied that the requirements set out in sec.54 of the Human Fertilisation and Embryology Act 2008 (the 2008 Act) had been met. On the face of it, certain requirements of the 2008 Act were impossible to satisfy as a result of Mr Y’s death - the 2008 Act provides that there must be a joint application, that the applicants need to be married, that the child’s home must be with the applicants and that both applicants need to be over 18. If there was a literal interpretation of the terms of the 2008 Act, the application would necessarily fail, as Mr Y had died before X was born.

There has been a run of cases though which have allowed the court, in some limited situations, to interpret the terms of legislation with some flexibility. The question here was whether this set of circumstances justified that approach: could the court interpret the terms of the 2008 Act sufficiently widely to allow a Parental Order to be granted when one of the intended parents dies before the baby is born? That all depended on section 3 of the Human Rights Act 1998.  

The Human Rights Act provides that where possible legislation needs to be interpreted - read and given effect to - in a way that is compatible with the Convention Rights that we have under the European Convention on Human Rights. In this case the court was satisfied that two Articles of the European Convention were relevant, and engaged, so that opened the door to the possibility of the court interpreting the 2008 Act widely and “reading down” the relevant provision in a Convention compliant manner.

The court concluded that Parliament’s intention could not have been that a child in X’s position would be precluded from being recognised as the child of Mr and Mrs Y and was prepared to interpret the 2008 Act widely and grant the Parental Order. In her judgment Mrs Justice Theis noted that: “The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father.  The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X’s security and identity in a lifelong way respecting both her Article 8 and 14 rights.”

It needs to be borne in mind that this is a case from the England and Wales and is not binding upon the Scottish courts. Although the 2008 Act applies across the UK, it will be interpreted in the different parts of the UK according to our distinct legal systems. The Scottish courts would be slow to disregard a decision of Mrs Justice Theis, but it remains to be seen whether they will be quite as enthusiastic proponents of ‘reading down’ as the English judiciary have shown themselves to be in cases under the 2008 Act.

What the case undoubtedly does demonstrate in Scotland, as much as in England and Wales is that overhaul of our surrogacy legislation is necessary and the final report of the Law Reform Project being undertaken jointly by the Scottish Law Commission and the Law Commission of England and Wales, which is due is early 2022 can’t come soon enough.

The case deals with many important issues for intended parents and practitioners to consider - far too many to cover in this short post. For those interested in further commentary on the English Court’s judgement, have a look at the blog from our superb English colleague Natalie Gamble, who acted for the successful parent.