X, Re [2020] EWFC 39 (20 May 2020)

X, Re [2020] EWFC 39 (20 May 2020)

The court can and should interpret s 54 HFEA 2008 compatibly with the Human Rights Act 1998 to allow a parental order to be made where one intended parent died after embryo transfer but before the child's birth, provided all other statutory criteria are met. This interpretation is consistent with the underlying thrust of the legislation, does not offend a fundamental feature of the statutory scheme, and is necessary to avoid unjustifiable discrimination and to protect the child's and surviving parent's rights under Articles 8 and 14 ECHR.

Citation
[2020] EWFC 39
Parties
1st Applicant: Mrs Y; 2nd Applicant: Mr Y; 1st Respondent: Mrs Z; 2nd Respondent: Mr Z; 3rd Respondent: X (through her children's guardian Maria Douglas)
Jurisdiction
England and Wales
Judgment Date
20 May 2020
Procedural Posture
Parental Order Application (family Court) / Judgment After Final Hearing
Outcome
Parental order granted
Legal Topics
Parental Orders, Surrogacy, Interpretation of Statutes Under Human Rights Act, Posthumous Parental Rights, Birth Registration
Family Law Human Rights Parental Orders Surrogacy Interpretation of Statutes Under Human Rights Act Posthumous Parental Rights Birth Registration

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Parties

Mrs Y

1st Applicant

Mr Y

2nd Applicant

Mrs Z

1st Respondent

Mr Z

2nd Respondent

X (through her children's guardian Maria Douglas)

3rd Respondent

Procedural Posture

Parental Order Application (family Court) / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the court can 'read down' s 54 Human Fertilisation and Embryology Act 2008 to allow a parental order where one intended parent died before the child's birth
  2. 2 Whether the application for a parental order survives the death of an intended parent under s 1 Law Reform (Miscellaneous Provisions) Act 1934
  3. 3 Whether refusal to make a parental order would breach the child's and surviving parent's rights under Articles 8 and 14 ECHR

Ratio Decidendi

The court can and should interpret s 54 HFEA 2008 compatibly with the Human Rights Act 1998 to allow a parental order to be made where one intended parent died after embryo transfer but before the child's birth, provided all other statutory criteria are met. This interpretation is consistent with the underlying thrust of the legislation, does not offend a fundamental feature of the statutory scheme, and is necessary to avoid unjustifiable discrimination and to protect the child's and surviving parent's rights under Articles 8 and 14 ECHR.

Court Disposition

Parental order granted

Orders

  • A parental order is made in favour of Mrs Y and the late Mr Y in respect of X.
  • X's birth certificate shall record Mr Y as her father, with 'deceased' noted in accordance with registration regulations.