Re Z (Surrogate father)

Hearing dates: 28–29 July 2015

Sir James Munby, President of the Family Division:

When section 54(1) of the Human Fertilisation and Embryology Act 2008 provides that in certain circumstances the court may make a parental order on the application of "two people", is it open to the court to make such an order on the application of one person? Can section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable that to be done? These are the questions raised for decision here. In my judgment the answer to each question is clear: No.

The facts

I am concerned with a child, Z, who was born in August 2014 in the State of Minnesota in the United States of America. Z was conceived with the applicant father's sperm and a third party donor's egg implanted in an experienced unmarried American surrogate mother. There is no need for me to go into the details. Suffice it to say that the surrogacy arrangements were made through the agency of an Illinois company and in accordance with Illinois law. The agency was paid $12,000 and the surrogate mother a total of $33,737.10, comprising $5,637.10 in expenses, $1,100 compensation for the inconvenience of fertility treatment, $25,000 pregnancy compensation and $2,000 C-section compensation. Following Z's birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, relieving the surrogate mother of any legal rights or responsibilities for Z and establishing the father's sole parentage of Z. Following that court order he was registered as Z's father in Minnesota. The father has since returned to this country, bringing Z with him.

The legal effect of this can be summarised as follows. The surrogate mother, although she no longer has any legal rights in relation to Z under Minnesota law, is treated in this country as being his mother. Whatever his legal rights in Minnesota, the father does not have parental responsibility for Z in this country. For the moment Z's position has been secured by making him a ward of court, but this in the nature of things cannot provide a permanent solution. There are only two possible routes by which the court can secure the permanent transfer in this country of parental responsibility from the surrogate mother to the father: by means of a parental order in accordance with section 54 of the 2008 Act; or by means of a adoption order in accordance with section 46 of the Adoption and Children Act 2002. For reasons that are well understood and apparent from a number of authorities which there is no need for me to refer to, the father would very much prefer to be able to obtain a parental order.

Thus in February 2015 the father applied to this court for a parental order in accordance with section 54 of the 2008 Act. The surrogate mother has executed a notarised consent to the making of the order which complies with the requirements of sections 54(6) and 54(7) of the Act (see below). The parental order reporter supports the father's application and invites the court to exercise its discretion retrospectively to authorise the various payments.

The issue

But for one matter this application would be unproblematic. The problem is that the application is made by a single parent, whereas section 54 seemingly requires an application to be made by "two people".

The legislation

So far as material, section 54 of the 2008 Act provides as follows:

"(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if –

(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (8) are satisfied.

(2) The applicants must be –

(a) husband and wife,

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except [not relevant], the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order –

(a) the child's home must be with the applicants, and

(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the age of 18.

(6) The court must be satisfied that both –

(a) the woman who carried the child, and

(b) any other person who is a parent of the child but is not one of the applicants …,

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.

(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of –

(a) the making of the order,

(b) any agreement required by subsection (6),

(c) the handing over of the child to the applicants, or

(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.

(9) For the purposes of an application under this section –

(a) in relation to England and Wales … "the court" means the High Court or the family court …

(10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination."

The legislative context

To set section 54 in its historical context, I need briefly to refer not merely to some of the provisions of its statutory predecessor, section 30 of the Human Fertilisation and Embryology Act 1990 (which came into force in 1994), but also to analogous provisions in the legislation relating to adoption.

I start with adoption. From the very beginning of adoption in this country, the legislation has always provided for adoption orders to be made in favour of either one person (see, for example, section 1(3) of the Adoption Act 1926, sections 14 and 15 of the Adoption Act 1976 and, now, section 51 of the Adoption and Children Act 2002) or a couple. Originally, and until quite recently, a couple could adopt only if they were husband and wife (see, for example, section 1(3) of the 1926 Act and section 14 of the 1976 Act).

That was the state of adoption law when section 30 of the 1990 Act came into force in 1994:

"(1) The court may make an order providing for a child to be treated in law as the child of the parties to a marriage (referred to in this section as "the husband" and "the wife") if –

(a) the child has been carried by a woman other than the wife as the result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of the husband or the wife, or both, were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (7) below are satisfied.

(2) The husband and the wife must apply for the order within six months of the birth of the child …

(3) At the time of the application and of the making of the order –

(a) the child's home must be with the husband and the wife, and

(b) the husband or the wife, of both of them, must be domiciled in a part of the United Kingdom or in the Channel Islands or the Isle of Man.

(4) At the time of the making of the order both the husband and the wife must have attained the age of eighteen."

So, in contrast to contemporary and long-established adoption law, section 30 contained no provision for a parental order to be made in favour of one person.

Section 50 of the 2002 Act, in contrast to its statutory predecessors, provides for adoption by "a couple", defined for this purpose in section 144(4) as meaning "(a) a married couple, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship."

The Civil Partnership Act 2004 came into force on 5 December 2005. Its effect, so far as material for present purposes, was to extend section 50 of the 2002 Act to include civil partners. However, it left section 30 of the 1990 Act unaffected.

Accordingly, when what is now section 54 of the 2008 Act was being considered in Parliament, the situation was this: (1) An adoption order could in principle be made in favour of one person or a couple (defined for this purpose as a married couple, civil partners, or two people, whether of different sexes or the same sex, living as partners in an enduring family relationship). (2) In contrast, a parental order could be made only in favour of a married couple.

The effect of section 54(2) of the 2008 Act was, as we have seen, to bring the definition of a "couple" into line with the definition in section 144(4) of the 2002 Act. So, in terms of a "couple", the approach was the same for a parental order as for an adoption order. But...