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1. Critically analyse the court’s decision in Re A (Surrogacy: s.54 Criteria) [2020]EWHC 1426 (Fam).
Your answer should:
(a) explain what the court decided and the reasons for its decision
(b) locate the case within wider recent developments concerning surrogacy
and parental orders, and
(c) evaluate the court’s decision (e.g. was a different result open to the court?
did it create any problems? does the decision rest on any questionable
assumptions?)
To critically analyse the court’s decision in Re A (Surrogacy: s.54 Criteria) [2020] EWHC 1426
(Fam) this essay will argue that even though the court’s judgment goes against the trend in
this area, it does reflect the much wider issues regarding surrogacy law and parental orders
and the urgent need for reform.
Re A (Surrogacy: s.54 Criteria) involved a successful parental order application where M and
F were A’s biological and intending parents but had separated during the surrogate’s
pregnancy, were not living together, the application was out of time and the father had
minimal contact with the child.1
(a) Explain what the court decided and the reasons for its decisions?
The court granted the parental order on the basis that they found all statutory requirements
of section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA) had been met. 2
Also, it is the only order where the law recognises both parties as parents and is
“overwhelmingly in the welfare best interests of A that he is made the subject of a parental
order”.3
The Court reached this decision by considering the following 3 issues….
i. The application was made outside of the 6-month time limit (s.54(3))
ii. Both parents were separated so the child’s home will not be the same at the
time of the application and making of any parental order (s.54(4)(a))
iii. Whether the mother and father could be found to be “two persons who are
living as partners in an enduring family relationship” at the time of the
application. (s.54(2)(c).4
1
Re A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam)
2
The Human Fertilisation and Embryolgy Act 2008 s.54
3
Re A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam) –60, 63
4
case 20
, On the first issue, Mr Justice Keehan held that despite the application being made two years
after the time limit set out by s.54(3) of the HFEA. 5 This section is unable to prevent the
court from making an order solely on the basis that it was made after the six-month
expiration period.6
Under the second issue, the judge held that the Mother and Father’s dedication and
commitment to A were sufficient enough to show that they were in an enduring family
relationship. Also, prior to the surrogacy arrangement, both parties were in an enduring
relationship.7 The Court was satisfied that A had a ‘family life’ with both parents and that
Article 8 and Article 14 were engaged. 8
Regarding the third issue, the court held that the term ‘home’ must be given a “wide and
purposive interpretation”, meaning that it is not restricted only to cases where the
applicants live together.9 Therefore, the court was satisfied that A had a ‘home’ with both
parents regardless of them living separately.10
(b) Locate the case within recent wider developments concerning surrogacy and
parental orders
On one hand, it does seem that the case follows existent case-law as Re A (Surrogacy: s.54
Criteria) can be located within recent wider developments regarding as the court was
required to ‘read down’ the statutory criteria contained in s.54. 11 This requirement was
originally set out in Re X (Parental Order: Death of Intended Parent Prior to Birth).12
S.54 has been subject to multiple Human rights ‘read downs’ as in A v P [2011], Theis J held
that the purpose of reading down s.54 was that “no other order can give recognition to [the
child’s] status in the same transformative way as a parental order can”.13
Re A (Surrogacy: s.54 Criteria) judgment fits in with recent wider developments as it
demonstrates how the courts continue to interpret the requirements set out in s.54 broadly
and flexibly and will grant the parental order if it is in the best interest of the child. 14 The
court also interpreted s.54 using article 8 and 14 of the European Convention of Human
Rights.15
According to Joanna Miles, “the criteria which the law imposes for the making of a parental
order are widely seen as inadequate, and the courts, particularly since the importation of
5
The Human Fertilisation and Embryolgy Act 2008 s.54(3)
6
Case Paragraph 35
7
Case – paragraph 55(i)
8
Case – paragraph 57
9
Case – paragraph 58
10
Case – paragraph 58
11
Case – paragraph 32
12
[2020] EWFC 39
13
Case paragraph - 31(2)
14
Simran Gupta, ‘Surrogacy: The Court’s flexible approach to the granting of parental orders’, (SA LAW 2020),
https://salaw.com/views-insights/surrogacy-the-courts-flexible-approach-to-the-granting-of-parental-orders/
accessed 9 November 2020
15
European Convention of Human Rights Article 8 and 14
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