Catriona Stirling considers the case of Z (a child) (No.2)  EWHC 1191 (Fam), in which Sir James Munby, President of the Family Division, has made a declaration under s.4 of the Human Rights Act 1998 (HRA) that s. 54(1) of the Human Fertilisation and Embryology Act 2008 (HFEA) is incompatible with Article 8 together with Article 14 of the European Convention on Human Rights.
Section 54(1) of the HFEA provides that in certain circumstances a court may make a parental order on the application of “two people”.
Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an American surrogate mother. 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. The father subsequently returned to the UK with Z.
Although the surrogate mother no longer had any legal rights in relation to Z under Minnesotan law, she was treated in this country as being his mother. The father did not have parental responsibility for Z in this country.
The only two routes by which to secure the permanent transfer in this country of parental responsibility from the surrogate mother to the father were by means of a parental order in accordance with s.54 of the HFEA; or by means of an adoption order in accordance with s.46 of the Adoption and Children Act 2002. For understandable reasons, the father wished to obtain a parental order. He applied to do so and the surrogate mother consented.
Z (a child)
In an initial judgment in Z (a child)  EWFC 73, Sir James Munby declined to ‘read down’ s.54 of the 2008 Act, in accordance with s.3(1) of the HRA, to permit the making of a parental order on the application of one person.
He noted that provisions in the legislation relating to adoption, s.51 of the Adoption and Children Act 2002 (and its predecessors) have always provided for adoption orders to be made in favour of one person.
However, the predecessor legislation to the 2008 Act, s.30 of the Human Fertilisation and Embryology Act 1990, contained no provision for a parental order to be made in favour of one person.
The father argued that the requirement that an application be made by two people was a discriminatory interference with a single person’s rights to private and family life, which was therefore inconsistent with Articles 8 and 14 of the Convention, as being single (in contrast with being one of a couple) was a ‘status’ within the meaning of Article 14 of the Convention.
It was, he said, artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy. The ‘two people’ requirement also offended against two cardinal principles of 21st century family law: that there should be no discrimination against different kinds of family; and that the child’s welfare remains the court’s paramount consideration.
He also argued that his relationship with Z implicated both his and Z’s rights under Article 8.
However, the Judge noted that the principle that only two people can apply for a parental order has been a clear and prominent feature of the legislation throughout (although the concept of who is a couple had changed over the years). The statutory provision could not be clearer and the contrast with the adoption legislation was a fundamental difference of obvious significance which betokened a very clear difference of policy which Parliament thought it appropriate to draw.
Construing the ‘two people’ requirement as the father wished would not be compatible with the underlying thrust of the legislation; it would be to ignore what is a key feature of the scheme and scope of the legislation.
Z (a child) (No.2)
The matter came before Sir James Munby again following an application by the father for a declaration of incompatibility. It was argued that s.54 was incompatible with Article 8, or Article 8 taken in conjunction with Article 14.
The Secretary of State conceded that s.54 of the HFEA was incompatible with Article 14 taken in conjunction with Article 8.
It was accepted that the facts fell within the ambit of Article 8 and that Article 14 was engaged; there was a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement. The difference in treatment, namely the inability to obtain a parental order, was on the sole ground of the status of the commissioning parent as a single person, versus the same person were he part of a couple. This difference in treatment could no longer be justified within the meaning of Article 14.
There was no concession that there was incompatibility with Article 8 taken alone, on the grounds that:
- There is no Convention right to undertake a surrogacy arrangement.
- Article 8 does not entitled a person to any particular method of obtaining legal recognition of the parent-child relationship following that arrangement. Providing that there is a mechanism for doing so, it is up to the State to determine how that is to be achieved, subject only to questions of discrimination.
- There had been no suggestion in any Strasbourg cases that the provision of adoption in surrogacy cases, instead of another form of recognition, is a breach of Article 8.
The Judge accepted that he could properly make a declaration of incompatibility with Articles 8 and 14, for the reasons put forward by the parties. He declined to expand upon those reasons and declined to determine whether the legislation was incompatible with Article 8, taken alone. He also declined to express a view as to how the incompatibility may be remedied, considering this a matter for a Minister, not a judge.
Article 8 and Article 14
This is a welcome decision in what was a clear-cut case of discrimination solely on the grounds of status as a single person, which engaged the protection of Article 14.
It is difficult to see how there could be any legitimate aim behind legislation forcing a single biological parent to adopt his or her own child rather than obtain a parental order, given the consent of the other parties involved, when the same biological parent, if in a couple, would not be forced to do so.
In those circumstances it is unsurprising that the Secretary of State did not seek to justify the difference in treatment.
It is to be hoped that the government will find that there are “compelling reasons” to amend the legislation, given that it felt itself unable even to attempt to justify its current form, and act quickly to remedy the defect, by bringing it into line with the analogous wording in the adoption legislation.
Although the Judge did not go on to consider the father’s arguments in relation to Article 8 alone, as it was not necessary for him to do so in the circumstances, it is in my view likely that both the father (and the child, had he been an applicant) would have succeeded, had this point been determined.
Mennesson and Labassee
In Mennesson v France App No. 65192/11 and Labassee v France App No. 65941/11, the ECtHR considered the refusal to grant legal recognition in France to parent-child relationships that had been lawfully established in the US between children born as a result of a commercial surrogacy arrangement. The children were conceived using the intended fathers’ sperm and donor eggs. The applications were lodged jointly by the intended parents and the children born as the result of the surrogacy arrangements.
The Court held in both cases that Article 8 was applicable with regards to both ‘family life’ and ‘private life’. As regards ‘family life’, the intended parents had been looking after the children as parents since they were born. They lived together with them in a way that was identical with ‘family life’ in the established meaning of the term. In relation to ‘private life’, the Court found that respect for private life demanded the right to establish details of one’s identity, and that this included the legal parent-child relationship: an essential aspect of the identity of individuals is at stake where the legal parent-child relationship was concerned.
The Court found that the refusal to grant legal recognition of the parent-child relationships amounted to an interference in the rights to respect for family and private life. This interference was in accordance with the law and pursued two legitimate aims: the ‘protection of health’ and ‘the protection of the rights and freedoms of others’, as the French legislation stemmed from the desire to discourage French nationals from utilising methods of assisted reproduction outside France that are banned domestically, and in accordance with the government’s wish to safeguard children and surrogate mothers.
On the question of whether the interference was ‘necessary in a democratic society’, a State’s margin of appreciation was wide in relation to surrogacy, as there was no consistency in approach between Member States and because surrogacy raised sensitive moral and ethical issues. However, this margin was limited where a particularly important facet of an individual’s existence or identity was at stake. This was clearly the case in surrogacy situations as legal parentage involved an essential aspect of one’s identity. In those circumstances, States should aspire to strike a balance between interests of the community and those of the applicants.
The Court found no violation of the right to respect for family life. The difficulties the applicants had to face were not overwhelming and did not preclude them from the enjoyment of the right to respect for family life. They were able to settle with the children in France shortly after the twins were born and there was no suggestion that they would be separated by the French authorities. This was a fair balance between the interests of the intended parents and the State.
However, the children’s right to respect for their private life had been violated. France had overstepped the permissible limits of its margin of appreciation. There was a direct link between identity and respect for private life and a key aspect of identity was at stake where legal parentage was concerned. Nationality and the right to inheritance were the relevant elements of identity. The children were unable to obtain French nationality and their inheritance rights were less favourable as they could only inherit from the intended parents as legatees. This was irreconcilable with the paramountcy of the best interests of the child. The significance of these shortcomings was exacerbated by the fact that the intended father was also the genetic father of the children.
Article 8 in the Present Case
It was undisputed that Article 8 was engaged in Z. The question of interference in both family and private life would be less clear-cut in Z than in Mennesson and Labassee, due to the availability to the father of an adoption order, but in my view, it is likely that there would still be an interference.
It may well be that any interference with the child’s right to respect for his private life would be considered to be necessary in a democratic society in circumstances where that child could be adopted.
However, as already stated, it is difficult to think of a legitimate aim that would distinguish between couples and single people in these circumstances; plainly, the legitimate aims relied upon in Mennesson and Labassee could not be relied upon here.
If the government acts responsibly by fixing speedily the problem identified in s. 54, then this specific issue should not need to be considered by our courts again.
However, it is clear that the particularly sensitive and complex nature of surrogacy arrangements are likely to give rise to further domestic case law in the future.
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