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Father should be allowed to apply for parental responsibility after surrogacy

In the matter of Z (A Child) (No 2) [2016] EWHC 1191 (Fam)

The Court of Protection granted an order for a declaration of incompatibility of a section of the Human Fertilisation and Embryology Act with the Convention. 

The facts were that a child was born in Minnesota in the USA as a result of surrogacy.  The applicant was the father and the mother was a donor while the surrogate was not related to the child.  The surrogacy complied with the relevant legal requirements.  The court in Minnesota relieved the surrogate mother of legal rights and responsibilities and established the applicant father as the sole parent of the baby.

When the applicant returned to the UK with the child, the UK continued to treat the surrogate as the mother while the applicant did not have parental responsibility.  In order to establish his parentage he would have to apply for a parental order.  However, under the legislation a parental order must be made by two people and it could not be interpreted otherwise.  The applicant sought a declaration that the provision was incompatible on grounds that it discriminated against a single person’s rights to private and family life, which was inconsistent with Articles 8 and 14 of the Convention.

The Secretary of State did not accept that there was any incompatibility with Article 8 construed by itself and that the relevant provisions were incompatible with Article 14, construed in conjunction with Article 8.  This was therefore a discrimination case.  The judge accepted that a declaration of incompatibility could be made but considered that this matter concerned a controversial social policy issue.  Therefore, it was for the legislature to determine its response.

Read the UK Human Rights blog article here.

Discrimination, ECHR Art. 8, Family Law