X & Anor v W & Anor

X & Anor v W & Anor

The court has jurisdiction to make a declaration of parentage as Y was habitually resident in the jurisdiction prior to his death. The criteria for a parental order under s 54 HFEA 2008 are met, including the existence of an enduring family relationship, the genetic link, domicile, and the surrogate's valid consent. The court reads down s 54 in line with human rights obligations to allow for the death of one intended parent and the unmarried status of the applicants. Payments made to the surrogate are authorised as they are within the usual range and made in good faith. Making the parental order meets Z’s lifelong welfare needs and secures his identity.

Parties
Applicant: X; Applicant: Y (Deceased); 1st Respondent: W; 2nd Respondent: Z (A Child by his Children’s Guardian Kay Demery)
Jurisdiction
England and Wales
Judgment Date
04 March 2022
Procedural Posture
Family Law Parental Order and Declaration of Parentage / Judgment After Final Hearing
Outcome
Declaration of parentage and parental order granted
Legal Topics
Parental Order, Declaration of Parentage, Surrogacy Arrangements, Death of Intended Parent, Consent of Surrogate, Domicile and Habitual Residence
Family Law Surrogacy International Private Law Parental Order Declaration of Parentage Surrogacy Arrangements Death of Intended Parent Consent of Surrogate +1 more

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Parties

X

Applicant

Y (Deceased)

Applicant

W

1st Respondent

Z (A Child by his Children’s Guardian Kay Demery)

2nd Respondent

Procedural Posture

Family Law Parental Order and Declaration of Parentage / Judgment After Final Hearing

Legal Issues

  1. 1 Whether the court has jurisdiction to make a declaration of parentage for Y (deceased) in relation to Z
  2. 2 Whether the criteria under s 54 Human Fertilisation and Embryology Act 2008 for a parental order are met, including in the context of the death of one intended parent and the applicants not being married
  3. 3 Whether the surrogate's consent is valid and sufficient

Ratio Decidendi

The court has jurisdiction to make a declaration of parentage as Y was habitually resident in the jurisdiction prior to his death. The criteria for a parental order under s 54 HFEA 2008 are met, including the existence of an enduring family relationship, the genetic link, domicile, and the surrogate's valid consent. The court reads down s 54 in line with human rights obligations to allow for the death of one intended parent and the unmarried status of the applicants. Payments made to the surrogate are authorised as they are within the usual range and made in good faith. Making the parental order meets Z’s lifelong welfare needs and secures his identity.

Court Disposition

Declaration of parentage and parental order granted

Orders

  • Declaration of parentage in favour of Y (deceased) as Z’s legal parent
  • Parental order made in favour of X and Y (deceased)