The Family Court recently made a parental order in the names of both parents of twins born via...
The Family Court recently made a parental order in the names of both parents of twins born via surrogacy, despite their father having died before their birth.
The mother and father had been in a relationship for several years before marrying. Their first child was born following IVF treatment and, after being unable to have more children, they entered into a surrogacy arrangement abroad. An embryo was created from the mother's and father's gametes, which was then transferred to the surrogate mother. The surrogacy agreement expressly provided for the mother and father to become the legal parents of any children born. Tragically, the father died shortly before the twins were born.
The mother initially applied for a parental order in her sole name but subsequently sought to amend the application to include the father, asking the Court to 'read down' the provisions in Section 54 of the Human Fertilisation and Embryology Act 2008 to allow a joint parental order to be made, as it had previously done in the similar case of Re X.
The mother acknowledged that, applying ordinary principles of statutory interpretation, Section 54 did not permit the Court to make a joint parental order, as its provisions require a joint application by two living applicants. She submitted that making a sole parental order would fail to properly respect the twins' identity rights under Article 8 of the European Convention on Human Rights (ECHR), which guarantees the right to respect for private and family life, as it would extinguish their legal relationship with their genetic father and prevent him from being named on their birth certificates.
An ordinary reading of Section 54 would also amount to discrimination under Article 14 of the ECHR as the twins would be treated differently from a child in the same position who had been conceived naturally. If the genetic father of a naturally conceived child dies before the child's birth, the law allows him to be named on the birth certificate. Adopting the same reasoning as in Re X, there could no justification for that difference in treatment and there was no other means by which the father's parenthood could be legally recognised alongside the mother's. Furthermore, as the Court had explained in Re X, the difference in treatment ran contrary to Parliament's intention in enacting Section 54.
The Court agreed that the application could be amended and that the way Section 54 had been read down in Re X applied equally to the mother's case. The Court was satisfied that the relevant requirements in Section 54 were met, and that the twins' lifelong welfare needs required the making of a parental order for each of them, as only such an order would recognise the reality for them as the children of both parents.