The President has rejected an application by a father for a parental order under s 54 of the Human Fertilisation and Embryology Act 2008 on the basis that "the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout."
In Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 the court heard that the child, Z, had been conceived with the applicant father's sperm and a third party egg using an unmarried surrogate mother in Illinois. The issues that arose in the case were, firstly, whether it was open to the court to make a parental order under section 54 (1) of the Human Fertilisation and Embryology Act 2008 on the application of one person. Secondly, could section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable the court to make a parental order in favour of one person.
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. However, for the purposes of English law the surrogate mother remained Z's mother and the father did not have parental responsibility for Z.
From paragraphs 6 to 14 of his judgment, Munby P sets out s 54, which allows a parental order to be made on the application of two people, and its legislative context. In doing so, he considered s 30 of the Human Fertilisation and Embryology Act 1990 and the legislation concerning adoption. The President notes that in contrast to contemporary and long-established adoption law, s 30 contained no provision for a parental order to be made in favour of one person. The legislative developments that followed made no changes to this position.
At paragraphs 15 to 17, the President considered the legislative debate culminating in the enactment of the HFEA 2008 as recorded in Hansard. In particular, the records demonstrate that an amendment was sought to the Bill with the purpose of achieving consistency with adoption law, but it was argued against and subsequently withdrawn.
The fundamental argument of the father was that the requirement of s 54(1) constituted a discriminatory interference with a single person's rights to private and family life, and was therefore inconsistent with Articles 8 and 14 of the European Convention. Inter alia, it was also argued that the legislation was contrary to Article 12 of the Convention which protects the right to found a family. Further, it was said that the law and the government policy was to enable single persons to be eligible to adopt; and that it was artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. The father's case was supported by CAFCASS.
Munby P found that the fact that the relevant provision was found in primary legislation represented a substantial obstacle as it was not enough to show that there is incompatibility. The father sought to argue that there was no incompatibility and the section could be 'read down' in accordance with s 3(1)of the Human Rights Act 1998. The President considered the case of Ghaidan v Godin-Mendoza [2004] UKHL 30 and sets out the relevant passages at paragraphs 28 to 34 of the judgment.
The father's case was rejected on the basis that "the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout."
Further, the President found that " the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, ..., a "fundamental feature", a "cardinal" or "essential" principle of the legislation, ...".
Finally, the President states that this judgment is not intended to throw any doubt on the correctness of other decisions (referred to in the judgment) under s 54 of the HFEA 2008.
Sources: http://www.familylawweek.co.uk/site.aspx?i=ed147201
In Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 the court heard that the child, Z, had been conceived with the applicant father's sperm and a third party egg using an unmarried surrogate mother in Illinois. The issues that arose in the case were, firstly, whether it was open to the court to make a parental order under section 54 (1) of the Human Fertilisation and Embryology Act 2008 on the application of one person. Secondly, could section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable the court to make a parental order in favour of one person.
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. However, for the purposes of English law the surrogate mother remained Z's mother and the father did not have parental responsibility for Z.
From paragraphs 6 to 14 of his judgment, Munby P sets out s 54, which allows a parental order to be made on the application of two people, and its legislative context. In doing so, he considered s 30 of the Human Fertilisation and Embryology Act 1990 and the legislation concerning adoption. The President notes that in contrast to contemporary and long-established adoption law, s 30 contained no provision for a parental order to be made in favour of one person. The legislative developments that followed made no changes to this position.
At paragraphs 15 to 17, the President considered the legislative debate culminating in the enactment of the HFEA 2008 as recorded in Hansard. In particular, the records demonstrate that an amendment was sought to the Bill with the purpose of achieving consistency with adoption law, but it was argued against and subsequently withdrawn.
The fundamental argument of the father was that the requirement of s 54(1) constituted a discriminatory interference with a single person's rights to private and family life, and was therefore inconsistent with Articles 8 and 14 of the European Convention. Inter alia, it was also argued that the legislation was contrary to Article 12 of the Convention which protects the right to found a family. Further, it was said that the law and the government policy was to enable single persons to be eligible to adopt; and that it was artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. The father's case was supported by CAFCASS.
Munby P found that the fact that the relevant provision was found in primary legislation represented a substantial obstacle as it was not enough to show that there is incompatibility. The father sought to argue that there was no incompatibility and the section could be 'read down' in accordance with s 3(1)of the Human Rights Act 1998. The President considered the case of Ghaidan v Godin-Mendoza [2004] UKHL 30 and sets out the relevant passages at paragraphs 28 to 34 of the judgment.
The father's case was rejected on the basis that "the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout."
Further, the President found that " the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, ..., a "fundamental feature", a "cardinal" or "essential" principle of the legislation, ...".
Finally, the President states that this judgment is not intended to throw any doubt on the correctness of other decisions (referred to in the judgment) under s 54 of the HFEA 2008.
Sources: http://www.familylawweek.co.uk/site.aspx?i=ed147201
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