High Court ruling in another NGA case – What happens when a parent dies mid-surrogacy journey?

June 5, 2020
new reported surrogacy case (Re X (2020)) in which NGA Law represented the parents has, in tragic circumstances, highlighted once again the inadequacy of UK surrogacy law.

A straightforward UK surrogacy case became complicated when the intended father died unexpectedly

The case involved an unexpected tragedy in the midst of what should have been a straightforward UK surrogacy arrangement.  The intended parents (Mr and Mrs Y) had entered into a written UK surrogacy agreement with a friend and conceived baby X (using the intended father’s sperm) at a UK fertility clinic. However, when the surrogate was five months pregnant, the intended father died suddenly and unexpectedly of a heart disturbance. It was a tragedy which would have been heart-breaking for any family, leaving a new mum a widow and a baby girl without the father who had so longed for her. However, the difficulties were exacerbated for this family by the UK’s surrogacy laws which also created significant legal problems.

What were the issues with the UK’s surrogacy law?

Even though the intended mother assumed care of her daughter from birth, she had no legal status as her daughter’s mother. In accordance with UK surrogacy law, the surrogate and her husband were X’s legal parents and registered as such on her birth certificate.

The intended parents had planned to apply for a parental order to correct their daughter’s birth certificate, but the intended father’s tragic death meant that, instead of facing a straightforward court application, they were no longer eligible to apply at all. To explain, the criteria for a parental order have to be met after the birth. By the time X was born, the intended parents could not make a joint application on the basis they were married and X had her home with them both. Neither could the intended mother apply for a parental order on her own, because she was not X’s biological mother. The only alternative solution was a sole adoption order in favour of the intended mother, but that was wholly inadequate because it would make X an adopted child and mean that she would never have any legal connection with her biological father. As the intended mother said in her evidence to the court (as quoted anonymously by the judge in her judgment):

It is incredibly important to me to apply for a parental order. It is not just for myself or for [Mr and Mrs Z – the surrogate and her husband] (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; the clinic thought we deserved a chance to be parents, and [the egg donor and Mr and Mrs Z] all gave so much to make this possible. The fact that [Mr Y] has died should not change anything. The way [X] was conceived was all about love, and [Mr Y] is – and always will be – her daddy. I know, had he been here, that he would never have stopped talking about her, and she would have made him so proud. She deserves to have a parental order which recognises him as her father, and I hope that the court will find a way to make it possible.”

The court’s decision

On the face of the legislation, it was clear that the criteria for a parental order were not met. However, the Human Rights Act 1998 requires the court to apply the law compatibly with human rights and this gives some flexibility. There is of course a limit to how far the court can stretch the rules, even where human rights are breached, and in any human rights case the court must decide whether it is possible to read the existing law compatibly with human rights, or whether to make a ‘declaration of incompatibility’ to alert Parliament to the need to change the legislation.

After hearing extensive legal submissions, Mrs Justice Theis found that she could read the existing law flexibly. She did so by imagining that additional words were included in the section 54 criteria to enable someone to bring a parental order application on behalf of someone who had died. Theis J said that the court could adapt the legislation in this way, by ‘reading in’ additional words, because:

  • this scenario had not been envisaged when the law was originally made,
  • a deceased father could be recorded on a child’s birth certificate posthumously in every other scenario of both natural and assisted conception,
  • following changes to the law enabling single parents to apply for a parental order in 2019, Parliament had decided to be inclusive in respect of who could apply for a parental order, and
  • a creative reading of the law did not go against the underlying thrust of the legislation.

The decision will enable a birth certificate to be issued for X which records her parents as her mother and deceased father.

What is the wider significance of this decision?

To the credit of a creative family court, an outcome was found which safeguarded the welfare of the child, the surrogate and the parents. But the case highlights once again the urgent need for UK surrogacy law reform. The personal tragedy experienced by this family was compounded by a long and difficult legal fight to enable X’s birth certificate to record her mother and biological father, even though all the adults involved were in agreement and the right outcome was morally obvious.

It is also yet another example of the law becoming muddied because the court has to stretch outdated legislation.  The gap between what section 54 says and how it works in practice is becoming ever wider.

Underlying all this is one very basic problem: timing. The main reason the system of parental orders is flawed is because it happens far too late in the surrogacy process. While legal parenthood is determined at conception for all other children born through assisted reproduction (including egg and sperm donation), in surrogacy cases parenthood has to be reassigned after the child is born. But the court cannot regulate surrogacy effectively in the rear-view mirror, and there is no provision for what happens if circumstances change between conception and birth.  As this case shows, the time lag between the start of the surrogacy process and the legal catch-up can leave children and families in a black hole.

The Law Commissions of England and Wales and Scotland are in the process of reviewing the law, and one of their key provisional recommendations is a new pathway to parenthood so that in some UK surrogacy cases the intended parents will be the legal parents from birth. This recognises what surrogacy is: not a decision to hand over a child after he or she is born, but a process which starts from a shared intention before a child is conceived. However, we think the Law Commission needs to go further in recognising shared intention for children for whom parental orders still need to be made too.  At present the Law Commissions have recommended retaining the existing parental order process for many surrogacy cases without significant reform.  We think the current parental order system needs to be more fundamentally overhauled and that this case shows very clearly why recognition of shared intention, and not the circumstances which apply after birth, is so important.

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