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Father who died during surrogate pregnancy is legal parent, court rules

8 June 2020
Appeared in BioNews 1050

Legal parenthood has been granted to an intended father who died before his surrogate-carried child was born. 

A couple, known as Mr and Mrs Y, following several unsuccessful IVF cycles, entered into a surrogacy arrangement in 2018. Mr Y's sperm and the surrogate's eggs were used to create an embryo and a pregnancy was established. During the pregnancy, Mr Y died unexpectedly. The baby (known as X in the case) was born in 2019 and Mrs Y has cared for her since birth. However, because of the UK's current surrogacy laws, the surrogate and her husband remain the legal parents and appear on the birth certificate.

Under UK law, the person who gives birth is automatically the legal mother of a child, and their spouse or civil partner (if they have one) will also be a legal parent. Intended parents must apply for a parental order after the child is born which transfers legal parenthood, and Mrs Y made such an application to confirm herself and her husband as X's legal parents. She was fully supported in doing so by the surrogate and her husband. 

However, because of Mr Y's death, certain provisions in section 54 of the Human Fertilisation and Embryology Act 2008, governing parental orders, could not be met. The application must be made by two people, the gametes of at least one of whom were used to create the embryo (section 54(1)). A single person can also apply for a parental order (see BioNews 981), but in that instance, a genetic link must exist between the applicant and the child, which would not apply in this case, as the genetic link was to Mr Y. Mrs Y could only obtain a parental order as part of a couple with her husband.

Ultimately, Mrs Justice Theis DBE held that the intended father should be granted a parental order and be registered on his child's (re-registered) birth certificate in the interests of the child's welfare and because only that order will 'recognise X's reality in a transformative way'. This conferred legal parenthood on Mr Y, despite his death. 

This case is just one in a long line of cases which interpret the requirements of section 54 to ensure the child's welfare  - the courts' paramount consideration (see BioNews 979). 

'The personal tragedy experienced by this family was compounded by a long and difficult legal fight to enable this child’s birth certificate to record her mother and biological father rather than the surrogate and her husband.  All the adults involved in the case wanted the same result but, although the right outcome was morally obvious, the law was not,' Mr and Mrs Y's solicitor Natalie Gamble of NGA Law told BioNews. 'This case shows why the UK so desperately needs law which recognises that in surrogacy cases parenthood comes from a shared intention when the child is conceived, and not by what happens after the birth.'

The Law Commission of England and Wales, and the Scottish Law Commission, are currently undertaking a joint review of surrogacy laws (see BioNews 1001). Recommendations for reform, alongside a draft Bill, are expected in early 2022. 

England and Wales Family Court Decisions (High Court Judges)
Bailii |  20 May 2020
15 June 2020 - by Dr Rita D'Alton-Harrison 
Section 54 of the Human Fertilisation and Embryology Act 2008 contains the eligibility criteria for the granting of a parental order in surrogacy arrangements. It is an important section. Yet intended parents and their lawyers may be forgiven for wondering whether the section is also necessary to ensure the child's welfare.
6 April 2020 - by Louisa Ghevaert 
A legal watershed occurred on 1 April 2020 when the UK Supreme Court handed down its judgment in the case of Whittington Hospital NHS Trust v XX. In doing so, it marked an important development and intersection of medical negligence, fertility and surrogacy law in the UK...
13 December 2019 - by BioNews 
In this film, Sarah Norcross - director of the Progress Educational Trust, the charity that publishes BioNews - discusses global surrogacy...
28 October 2019 - by Dr Calum MacKellar 
The Law Commissions of Scotland and England and Wales' joint consultation on surrogacy reform has now closed to responses...
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