'Parental orders for deceased intended parents: Re X (Foreign Surrogacy: Death of Intended Parent) [2022] EWFC 34' by Alan Brown and Katherine Wade in (2022) Medical Law Review fwac045 comments
If one intended parent in a surrogacy arrangement dies before the birth of the child, can both intended parents become the child’s legal parents? That was the question in Re X (Foreign Surrogacy: Death of Intended Parent). The legal starting point is that intended parent/s must apply for a parental order under the Human Fertilisation and Embryology Act 2008 (‘the 2008 Act’) after the child’s birth to obtain legal parenthood. This is required because the 2008 Act determines that the birth mother is the legal mother. Until 2018, parental orders were solely governed by section 54, which provides the conditions for a parental order to be granted to couples who are married, in a civil partnership4 or ‘living together in an enduring family relationship’. However, in 2018, a ‘declaration of incompatibility’ under section 4 of the Human Rights Act 1998 (‘the 1998 Act’) was made, leading to the insertion of section 54A, which provides the conditions for single applicants.
Re X (Foreign Surrogacy: Death of Intended Parent) is the latest case where the judiciary have ‘read down’ the section 54 conditions, through section 3 of the 1998 Act, to grant parental orders in circumstances where these statutory conditions do not otherwise appear to have been met. This is the third reported judgment where the intended father died prior to the parental order being issued. This commentary explores how the judgment in Re X (Foreign Surrogacy: Death of Intended Parent) builds upon these cases and on the general trend in the case law where the section 54 conditions are being stretched beyond their apparent limits. First, we consider the questions raised by this judgment and the preceding cases involving deceased applicants, regarding the judicial interpretation of the statutory requirement for a ‘genetic link’ under section 54(1)(b). Secondly, we examine the implications of the reasoning for other factual contexts, namely couples who separate before making a parental order application, as well as a potential wider challenge to the compatibility of the genetic link requirement for single applicants under section 54A with the European Convention on Human Rights (ECHR).
