Time for Change: What should Re X mean for surrogacy law in the UK?

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Statutory interpretation plays a fundamental part in our legal system. Bills are drafted and debated in Parliament which then votes on what the law will be and those bills eventually become statutes when Royal assent is given. These statutes, once in force, are then interpreted and applied by the judiciary in accordance with established rules in order to give effect to what Parliament intended. This is not always a straight forward exercise as statutes can be ambiguous or fail to account for unforeseen situations. Occasionally, a statute simply cannot be interpreted in any sensible way. This was the conclusion of the President of the Family Division, Sir James Munby, when considering the provisions of the Human Fertilisation and Embryology Act 2008 in the case of Re X (A Child)(Surrogacy: Time Limit) [2014] EWHC 3135.

The case considered an application for a ‘parental order’ made by a couple who had entered into a surrogacy arrangement with a woman in India. When the child was born, in accordance with the law (specifically ss. 33 & 35 of the HFEA 2008), the surrogate and her husband, not the commissioning couple, were the legal parents of the child and the only people with parental responsibility. In any case involving a surrogate, an order is required to extinguish the parental status of the surrogate parents and give it to the commissioning couple. If this is not done, then the legal status of the child does not change.

From 2013 to 2014 there were 201 applications for parental orders in the UK (a figure which is increasing) but it is estimated that thousands of surrogacy arrangements are entered into by UK couples every year. There must therefore be thousands of children being raised by couples who think they are the child’s legal parents, but in reality, they are not. Mrs Justice Theis called this a “legal time bomb” in her address to the Surrogacy Symposium in London earlier this year as it could cause significant problems in the future. For example, the commissioning couple would have no right to apply for a passport for the child or an inheritance to the child might fail. 

The procedure for making an application for a parental order is set out in s. 54 of the HFEA 2008 and includes various conditions which must be met if the parental order is to be granted. One of these conditions is set out in s.54(3) which states:

 “…the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”

On the face of it, this seems to be an unequivocal piece of drafting leading to the simple conclusion that if an application was made after the 6 month deadline a parental order cannot be made. This had been the accepted position prior to Re X with those who miss the deadline having to resort to adoption orders to regularise their relationship with their child. Adoption orders are considered less favourable than parental orders as they do not allow for a new birth certificate to be issued. Munby, however, disagreed with the accepted position and found that he did have power to make a parental order notwithstanding the fact that the application had been made over two years after the birth of the child in question.

In reaching this conclusion, Munby considered s.54(3) in light of the rules of statutory interpretation developed through case law going back to 1877 as well as the European Convention on Human Rights (ECHR) and the welfare of the child in question. He gave weight to the fact that the issue was one of fundamental importance to the child’s identity which would have profound consequences for the rest of the child’s life and that the reason for the delay was that the commissioning parents were unaware of the need to make the application despite their best efforts to research the matter in advance. He also noted that there was no guidance to be found as to why Parliament had included the 6 month rule in the first place but concluded that Parliament would have intended a ‘sensible result’. At paragraph 55, he said:

“Given the subject matter, given the consequences for the commissioning parents, never mind those for the child, to construe section 54(3) as barring forever an application made just one day late is not, in my judgment, sensible. It is the very antithesis of sensible; it is almost nonsensical.”

Munby was satisfied that he could make the parental order notwithstanding the fact it was made after the 6 month deadline. He did so initially based solely on the authorities of statutory interpretation but went on to say that he would have come to the same conclusion with reference to the ECHR as the statue required ‘reading down’ to ensure that its terms were interpreted in such a way as to protect Convention rights. In Re X, the Article 8 right to family life of both the parents and the child was considered.

The concept of ‘reading down’ comes from the UK Supreme Court case of Pomiechowskiv District Court of Legnica, Poland and another [2012] UKSC 20. It was considered again in Adesina v Nursing and Midwifery Council [2013] EWCA Civ818, a case which considered whether the rejection of an appeal filed a few days after the time limit breached the Article 6 right to a fair trial. In that case ‘reading down' was described as:

“…leaving some wiggle-room, notwithstanding the apparently absolute nature of the time limit.”

Interestingly, the finding in Adesina was that, whilst there could be some wiggle room, a few days in the context of that particular case was too long to enable the court to apply it and the appeal failed.  Munby distinguished Re X, where the application was made years after the time limit, on the basis it was necessary to protect the rights of the child who was in no way responsible for the delay but who would be the one to suffer the consequences for the rest of its life.

Finally, Munby considered the welfare of the child and concluded that making the parental order was unquestionably in its best interests and so could be justified on that basis as well.

It should be noted that other conditions of s.54 were considered, including whether the child had his ‘home’ with ‘both’ of the commissioning parents in accordance s.54(4) notwithstanding the fact that they had separated, and whether payments other than ‘reasonably incurred expenses’ had been made in breach of s.54(8). It is, however, the analysis of the 6 month rule in s.54(3) which arguably presents the most extreme example of judicial interpretation being stretched to its limits.

The decision in Re X could be hugely significant as there are undoubtedly many couples who were unaware they had to make an application for a parental order following a surrogacy arrangement but who have now missed the 6 month window. There have already been several cases since Re X in which applications for a parental order made after the 6 month deadline have been granted including A and B (No.2 Parental Order) [2015] EWHC 2080 (Fam) and Re A and B (Children) (Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911.  This relaxing of the rules may go some way to diffusing the ‘legal time bomb’ referred to by Theis J but are we missing the bigger picture?

The law governing surrogacy arrangements in England & Wales has been the subject of an increasing amount of debate in recent years and has been described by some leading experts (including the barrister who represented the child in Re X) as “woefully inadequate”. A candid analysis of Munby’s conclusions in Re X reveals s.54(3) of the HFEA 2008 to be a nonsensical piece of legislation which is incompatible with the ECHR and contrary to a child’s welfare. Surely the logical conclusion here is that the law needs to change, something which can only be done by Parliament. Yet does this type of extreme judicial interpretation not only blur the line between the legislature and the judiciary but also accommodate the problem rather than acting as a catalyst for much needed change?

When balancing the rules of statutory interpretation against the fundamental and lifelong relationship between a child and its parents, Re X confirms that the welfare of the child will be paramount. This will almost invariably lead to parental orders being made in such situations. But surely that conclusion, however justified, should not detract from the wider significance of the case in highlighting the fact that the law governing surrogacy in the UK is in desperate need of reform?

This blog was created to encourage debate and comments are therefore welcome.
AN UPDATE ON THIS POST CAN BE FOUND HERE.