X, Re

X, Re

Section 54 HFEA 2008 can and should be read down under s.3 HRA 1998 to permit a parental order where one intended parent dies after embryo transfer but before the child's birth, provided all other statutory criteria are met, as this is compatible with the underlying purpose of the legislation and necessary to avoid unjustified interference with the child's and surviving parent's Article 8 and 14 rights.

Parties
1st Applicant: Mrs Y; 2nd Applicant: Mr Y; 1st Respondent: Mrs Z; 2nd Respondent: Mr Z; 3rd Respondent (child, Through Guardian Maria Douglas): X
Jurisdiction
England and Wales
Judgment Date
20 May 2020
Procedural Posture
Parental Order Application (surrogacy) / Judgment After Full Hearing
Outcome
Parental order granted in favour of Mrs Y and the late Mr Y for child X.
Legal Topics
Parental Orders, Surrogacy, Interpretation of Statutes, Human Fertilisation and Embryology Act, Human Rights Act, Article 8 ECHR, Article 14 ECHR, Discrimination, Child Welfare
Family Law Human Rights Parental Orders Surrogacy Interpretation of Statutes Human Fertilisation and Embryology Act Human Rights Act Article 8 ECHR +3 more

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Parties

Mrs Y

1st Applicant

Mr Y

2nd Applicant

Mrs Z

1st Respondent

Mr Z

2nd Respondent

X

3rd Respondent (child, Through Guardian Maria Douglas)

Procedural Posture

Parental Order Application (surrogacy) / Judgment After Full Hearing

Legal Issues

  1. 1 Whether a parental order can be made where one intended parent dies before the child's birth under s.54 HFEA 2008
  2. 2 Whether s.54 HFEA 2008 can be 'read down' under s.3 HRA 1998 to allow such an order
  3. 3 Whether the application can be brought on behalf of the deceased parent

Ratio Decidendi

Section 54 HFEA 2008 can and should be read down under s.3 HRA 1998 to permit a parental order where one intended parent dies after embryo transfer but before the child's birth, provided all other statutory criteria are met, as this is compatible with the underlying purpose of the legislation and necessary to avoid unjustified interference with the child's and surviving parent's Article 8 and 14 rights.

Court Disposition

Parental order granted in favour of Mrs Y and the late Mr Y for child X.

Orders

  • A parental order is made naming Mrs Y and Mr Y as X's legal parents.
  • X's birth certificate to be reissued naming Mr Y (deceased) as father and Mrs Y as mother, in accordance with registration regulations.