UPDATE: Surrogacy & Parental Orders

Sir James Munby (President of the Family Division) has been drawing the “boundary line” in the ‘reading down’ of s.54 of the Human Fertilisation and Embryology Act 2008.

This topic was discussed in a recent post: Time for Change? What should Re X mean for surrogacy law in the UK?

Section 54 sets out the requirements that need to be met before the court can grant a parental order to the commissioning parents following the birth of a child to a surrogate. ‘Reading down’ refers to the application of section 3 of the Human Rights Act 1998 which states that legislation:

“...must be read and given effect in a way which is compatible with the Convention rights.”

In the recent decision of Re Z [2015] EWFC 73, Munby P refused to grant a parental order to a single father on the basis that he could not bring himself within s.54(1) of HFEA 2008 which states that the application can only be made “by two people”. The principle Convention right the father was invoking was the Article 8 right to a private and family life.

Previously, in Re X [2014] EWHC 3135, Munby P had used the principle of reading down to find that he could make a parental order notwithstanding the fact that the parties could not bring themselves within s.54(3) which required the application to be made with 6 months of the child’s birth. Other subsections have also been interpreted to allow parental orders to be made in situations where, on the literal wording of the Act, they could not be made.

This latest judgment distinguishes s.54(1) as going to the very nature of the legislation and clearly reflecting the intention of Government having given the issue due consideration. Munby P therefore concluded that he could not interpret s.54(1) to extend to applications made by a single person. Particular weight was given to the fact that the issue had been debated by Parliament and rejected in the lead up to both HFEA 2008 and its predecessor the HFEA 1990 and extracts from Hansard were quoted in the judgment. No such debate was had in respect of the requirement for the application to be made within 6 months the absence of which was relevant to the decision made in Re X.

You can read more about statutory interpretation and the decision in Re X here.