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Can a single person apply for a Parental Order in a surrogacy situation?

 

 

Parental orders are governed by section 54 of the Human Fertilisation and Embryology Act 2008. There are a few mandatory requirements set down by the Statute.

 

The application must be made by a couple. The application must be made within 6 months of the birth. At the time the order is made, the child’s home must be with the applicants. There must not be money changing hands save for reasonable expenses.  [I note in this case that some $45,000 dollars changed hands, which on the bare Act would not be permissable, but the Court never seem to have any problem with this any longer]

 

The Courts have, in recent months, been willing to grant exceptions to most of these mandatory stipulations and find their own wriggle-room, notably the President who when deciding whether the wording here:-

 

 

54 (3) the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

 

meant that the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born, instead gave this an interpretation of ‘or if not, you know, whenever’    [It was all done very elegantly and intellectually, but there is no good way to actually rewrite section 54(3) following that decision other than by simply striking a line through it, and for me, I don’t think Courts should be striking a line through bits of statute that they find inconvenient]

 

So in this case, the Court was asked to consider whether a parental order could be made on the application of a single person.

 

Re Z (A child : Human Fertilisation and Embryology Act 2008 : Parental Order) 2015

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/73.html

 

Decided by the President, who opens it with such a good paragraph I almost wish he’d left it there

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.

 

{I agree with the President here. I think he was wrong in the previous case, and that there’s only one sensible interpretation of s54(3) and that is that the six months is a cut-off point for making the application (and hence making an order)  }

 

The applicant put up a very grand fight on what was obviously a difficult argument given that the statue expressly says :-

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

 

The argument is that this is discriminatory against single people, as opposed to people who are in couples, that is in itself prohibited under Article 14 and that this also interfered with the applicant’s article 8 rights, and also adds in Article 12 which provides the right to marry and found a family (suggesting that these are two separate rights) and that as this stipulation is not HRA compatible the Court should ‘read it down’  to interpret the bare Statute in a way that would be HRA compatible. Additionally that there’s a distinction between Parental Orders (which only couples can apply for ) and Adoption Orders (which can be applied for by a single person or a couple).

In part, however, this is problematic because when the HFEA Bill was going through Parliament there’s a specific request made for s54 to be amended to provide for single persons to apply for parental orders and that request was specifically rejected.  (So where the President was able to ‘generously’ assume that Parliament never intended that applicants who waited 18 months before applying should be deprived of the chance just because that’s what the Act says, that ‘generous’ interpretation method can’t fly here – Parliament expressly determined that the Applicants for Parental Orders must be a couple and NOT a single person.

 

  1. Miss Isaacs has argued with skill and pertinacity that section 54(1) can legitimately be ‘read down’. With all respect to her submissions, I am unable to agree.
  2. 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. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act, like section 30 of the 1990 Act, is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and, in my judgment, very telling. Surely, it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw both in 1990 and again in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.
  3. Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, 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, in my judgment, a “fundamental feature”, a “cardinal” or “essential” principle of the legislation, to adopt the language of, respectively, Lord Nicholls and Lord Rodger. Putting the same point the other way round, to construe section 54(1) as Miss Isaacs would have me read it would not be “compatible with the underlying thrust of the legislation”, nor would it “go with the grain of the legislation.” On the contrary, it would be to ignore what is, as it has always been, a key feature of the scheme and scope of the legislation.
  4. Miss Isaacs seeks to persuade me to the other view by submitting (a) that the cardinal principle of the 2008 Act was to make the law fit for the twenty-first century by removing discrimination against different types of families and (b) that the fundamental purpose of section 54 was only ever to provide a regulatory scheme for the making of legal orders to safeguard the welfare of children born through surrogacy arrangements rather than to prevent or restrict eligibility to apply for such orders on the basis of any discriminatory criterion, such as single person status. No doubt these were important ingredients in what went to make up the statutory scheme as Parliament devised it in 2008, but they do not, in my judgment, reflect the whole picture or adequately describe all the key features of the statutory scheme.
  5. In my judgment, this application fails in limine. As a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act.
  6. I should make clear, for the avoidance of doubt or misunderstanding, that nothing I have said is intended to throw any doubt upon the correctness of the decisions, referred to in paragraph 26 above, holding that it is permissible to ‘read down’ sections 54(3) and 54(4) of the 2008 Act. In my judgment, each of those cases was correctly decided.

 

 

What is left, therefore, is an application that Parliament when enacting section 54 in this way acted in a way that was incompatible with Human Rights. That still stands to be determined.

 

There are of course other legal remedies open to a single person who enters into a surrogacy agreement – for one thing, that person having provided genetic material will have Parental Responsibility for the child.  (whereas in traditional couple commissioning a surrogate baby one will have PR and one won’t, hence the Parental Order ensuring that both of the couple have PR and legal rights about the child).   Old-fashioned Residence  (stupid “Child Arrangement Order” ) would do – assuming that an order was needed at all.

 

The father’s position here is complicated by the arrangement having been made in America, and thus him having no PR in England for this child. It still seems to me that as the child is in England and is habitually resident here, a Child Arrangements Order could be sought, but much brighter people than me have looked at it and said that the only two options are Parental Order or Adoption.

 

Adoption itself is not straightforward – as the man is the biological father of the child, it would have to come within s51 Adoption and Children Act 2002

 

(4)An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that

(a)the other natural parent is dead or cannot be found,

(b)by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37), there is no other parent, or

(c)there is some other reason justifying the child being adopted by the applicant alone,

and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.

 

As there is a mother of the child and she’s not dead and is capable of being found, it would have to be ground (c), which is pretty widely drawn. It is somewhat unusual to adopt your own child  (it does sometimes happen with step-parent adoptions – where say mum and step-dad adopt the child together)

 

I don’t know whether a declaration of incompatibility will be run here, and the President just concludes with:-

 

I end with this caveat. I have been prepared to assume for the purposes of this judgment the correctness of Miss Isaacs’ submissions based on Articles 8, 12 and 14 of the Convention and of the propositions which she seeks to derive from them. There has been no need for me to come to any concluded view on these matters and it is better that I do not, for these are issues which may yet need to be considered and ruled on if, as may be, the father decides to seek a declaration of incompatibility.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

3 responses

  1. Pingback: Can a single person apply for a Parental Order ...

  2. I find it difficult to believe that he can’t get parental responsibility purely on the grounds that he’s the child’s natural father.

    It’s also interesting that this is the line for the courts, as opposed to, say, large payments for surrogacy, including to women in developing countries, sometimes in exploitative circumstances. Parliament also chose not to legislate to allow this and for public policy reasons as, if not more, compelling.

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