Father should be allowed to apply for parental responsibility following surrogacy
Published on: 06/07/2016

The Court of Protection has granted an order for a declaration of incompatibility with ECHR rights of a section in the Human Fertilisation and Embryology Act on grounds of discrimination. This case concerned a child, Z, who was born in August 2014 in Minnesota, USA. Z was conceived with the applicant father’s sperm and a third party donor’s egg implanted in an experienced unmarried American surrogate mother, in accordance with Illinois law. Following Z’s birth, the father obtained a declaratory judgment from the appropriate court in Minnesota, establishing his sole parentage of Z. Following that court order, he was registered as Z’s father in Minnesota.

The legal effect of this is that the surrogate mother is treated as being his mother and the father has no parental responsibility for Z in the UK. The problem for the court was that under Section 54 of the Human Fertilisation and Embryology Act an application for a parental order must be made by two people. From the legal limbo in which Z’s father found himself, he relied upon the Convention in this hearing to apply for a declaration of incompatibility in respect of the offending provision.

The Secretary of State for Health conceded that Section 54 was incompatible with Article 14 taken in conjunction with Article 8 of the Convention. The Secretary of State pointed out that the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people was a discriminatory interference with a single person’s rights to private and family life, which is therefore inconsistent with articles 8 and 14 of the Convention.

The judge was satisfied that an order for a declaration of incompatibility should be made. However he did not accept the applicant’s argument that the court should go further and elaborate on ways in which the discriminatory effect of the present litigation could be cured. Secondly, he agreed with the Secretary of State’s observation that this is an area of social policy in relation to a matter – surrogacy – which is controversial.  It is constitutionally a matter for the legislature to determine its response.

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