Re X [2020] - Driving the law to its grave

Section 54 of the Human Fertilisation and Embryology Act 2008 contains the eligibility criteria for granting 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.

The recent case of Re X (see BioNews 1050) adds further confusion to the purpose and status of section 54. In this case the intended parents (Mr and Mrs Y) completed a surrogacy arrangement in the UK. Mr Y died before the child was born and before an application was made for a parental order. Section 54 uses the plural 'applicants' in many of the eligibility criteria. Mrs Y brought the application on behalf of herself and her deceased husband because she wanted the child to bear Mr Y's name. Applying as a single applicant under section 54A of the Act would not have achieved the same parental identity.

The question was whether Mrs Y had a legal right to bring the application under section 54 and could meet the relevant parts of the required criteria. The plurality of the word 'applicants' had already been considered in 2011 in the case of A v P where one of the intended parents had died after an application for a parental order had been made. The court held that the claim could survive their death. Re X, unlike A v P concerned a death before a parental order application was actually made. In Re X the court held that Article 14 of the European Convention on Human Rights 1950, meant Mrs Y should not be discriminated against as a widow. In addition, a parental order would give 'joint and equal parenthood' to Mr and Mrs Y and protect the right to private and family life under Article 8 of the Convention.

The court could have made a declaration of incompatibility in order to prompt Parliament to change this part of section 54. Instead the court chose to resolve the issue by taking a red pen to section 54 to give new meaning to words using the rules of statutory interpretation. This is in marked contrast to the case of Re Z (a child) where the court did make a declaration of incompatibility on the basis that it was not appropriate to strike a red pen through the requirement that an application should be made by two people in a recognised relationship (another condition of plurality). This prompted Parliament to intervene to change the law and the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 came into force in January 2019 and inserted a new section 54A into the 2008 Act to allow an application by a single person.

Whilst section 54 may no doubt deserve to be driven to its grave, in whole or in part, passengers on that celestial journey need to be clear about the direction of travel. When does section 54 merit the use of statutory interpretation and when would it be more appropriate to make a declaration of incompatibility that might quicken its demise?

Arguably the journey to the demise of section 54 began in 2014 with Re X (A Child) (Surrogacy: Time Limit). The use of statutory interpretation in this case resulted in effectively removing the requirement that a parental order must be made no later than six months after the birth of the child. In 2015 statutory interpretation was used to give the word 'home' a wide definition beyond simply living in a physical space together with the child (see Re A and B). By 2016 the requirement that couples who are not married or in a civil partnership must at least be in an 'enduring relationship' had been interpreted to include a part-time relationship (see DM and LK).

The main difficulty with section 54 is that it masquerades as a safeguard when in reality, as Sir James Munby observed, (see BioNews 979) at the time of a parental order application, 'the judge is presented with a fait accompli'. Even though the court can exercise its discretion to refuse a parental order, such an approach would appear draconian when the child is already living with the applicant(s).

Re X and previous cases illustrate the difficulties of legislating in a passive way when it comes to conditions or indeed penalties or sanctions. The law on surrogacy should indeed be based more on carrots than sticks (see BioNews 984). However, a careful balance needs to be struck as to where the sticks are placed so that compensatory carrots are not offered in the form of the judiciary's pen, no matter how well intentioned or deftly crafted.

The celestial journey of section 54 will arrive waving a judiciary flag that tells us that eligibility criteria do not always reflect the reality of what happens in surrogacy arrangements. In their consultation paper (see BioNews 1001 and 1011), the Law Commission of England and Wales and the Scottish Law Commission acknowledge that section 54 is being stretched to its limits and have indicated that they will look at how the eligibility criteria can be reformed. The imposition of eligibility criteria means nothing, however, if the only way to secure the child's welfare is to sanction already-completed arrangements.