Re Y and Z (Surrogacy: Death of Intended Parent) [2026] EWFC 135

[2026] EWFC 135Case No LU24P07402
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 June 2026
Before
MRS JUSTICE THEIS DBE
Between
A and BApplicant(1) GRespondents(2) and (3) Y and Z (children, by their Children’s Guardian)Respondent
Mr Tom Wilson (instructed on a pro bono basis by Forsters LLP) for ApplicantsThe First Respondent did not attendMs Jessica Lee (instructed by Beck Fitzgerald Solicitors) for Second and Third RespondentsHearing Hearing dates: 20 May 2026Judgment date: 12 June 2026
Approved Judgment.............................This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.

Introduction

[1]The court is concerned with an application for a parental order in relation to Y and Z, now 2 years of age. They were conceived using an embryo created from the gametes of A and B and were born through a surrogacy arrangement between A, B and G. G is a Country J national and the gestational surrogate. The surrogacy arrangement and birth took place in Country J.[2]Tragically and unexpectantly, B died just before the birth of Y and Z. Y and Z have been in the care of A since soon after their birth. Through this application A asks the court to ‘read down’ the provisions in section 54 Human Fertilisation and Embryology Act 2008 (HFEA 2008) in the same way as it did in Re X (Parental[3]A has had the benefit of specialist pro bono legal representation. The court is extremely grateful to Mr Wilson and his solicitor Ms Williams. Mr Wilson has set out the legal framework in the comprehensive skeleton argument and in the detailed oral submissions at the hearing on 20 May 2026. The application is supported by Ms Lee, who appears on behalf of the Children’s Guardian.[4]Although the C51 application was initially made in A’s sole name she seeks to amend it to include B, to enable, if a parental order is made, legal recognition of Y and Z’s identity and lived reality. As Mr Wilson submits, Y and Z are the long awaited, much wanted children of two parents. They were conceived jointly by their parents and are the genetic children of both their parents. B is currently, as a matter of English law, their legal father. The making of a sole parental order naming only A, would have the effect of extinguishing B’s legal parenthood (due to the effect of section 67 Adoption and Children Act 2002 (ACA 2002)), and fails properly to respect Y and Z’s identity rights pursuant to Article 8 European Convention on Human Rights (ECHR) and it places Y and Z in a less advantageous position compared to a child in the same position who was conceived naturally (in breach of their rights under Articles 8 and 14 ECHR).

Relevant background

[5]Although both A and B were born in other jurisdictions they have both lived in the United Kingdom for many years, and both are British Citizens. They had been in a relationship for several years before marrying.[6]They wished to be able to have a family of their own. As detailed in the written evidence they experienced enormous difficulties. They sought specialist advice and with the benefit of IVF their first child was born in several years later. They wanted to have more children but, sadly, they were unable to do so. They considered surrogacy and following research settled on Country J.[7]Subsequently, they registered with a surrogacy agency. The embryos were created in the United Kingdon and then transferred to the clinic in Country J.[8]Through that agency A and B were introduced to G and they entered into a surrogacy arrangement in 2023. That agreement expressly provided for A and B to become the legal parents of any children born as a result of the agreement. Paragraph 6.2 of the agreement contemplated the tragic circumstances that happened in this case, it provided ‘If during the validity period of this Contract, but before Childbirth, one of the Potential parents dies, then the second parent will not be released from fulfilment of obligations under this Contract in full, unless he or she will agree with the Surrogate Mother upon another solution.’[9]The embryos were transferred to G in 2023 and the pregnancy confirmed.[10]B died in late 2023 and Y and Z were born in early 2024.[11]A travelled to Country J. Y and Z were placed in her care and they travelled to the family home in the United Kingdom in early 2024, where they remain.[12]The C51 application for a parental order was made in June 2024. A did not have any legal advice at that time. Having now had the benefit of that advice A seeks to amend the C51 application to include B’s name.[13]Applications for parental orders are governed by Family Procedure Rules 2010 (FPR) Part 13. FPR r13.3(5) provides that: (5) If the court makes a direction for the addition or removal of a party, it may give consequential directions about –(a) serving a copy of the application form on any new respondent;(b) serving relevant documents on the new party; and(c) the management of the proceedings. (emphasis added)[14]Under FPR r 4.1(3)(o) the court has the power to take any step or make any order for the purpose of managing the case and furthering the overriding objective. The overriding objective in FPR rule 1.1 requires the court to ‘deal with cases justly, having regard to any welfare issues involved’ and to deal with them ‘expeditiously and fairly’.[15]In Re X at [96] I concluded that given this court’s interpretative obligations under s 3 Human Rights Act 1998 (HRA 1998) in similar circumstances as here, where an intended parent had died prior to the birth of a child born through a surrogacy arrangement, the application should proceed even where one of the intended parents had died. Mr Wilson submits the court should adopt the same reasoning here to permit the amendment of the C51 to include B. I agree.

Legal framework and submissions

[16]At the core of Mr Wilson’s submissions is s 3 HRA 1998, which states:
‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’
[17]Mr Wilson provides the following summary of the nature and operation of the obligation under s3 HRA 1998:a. Section 3 HRA 1998 is a ‘key section’ of the HRA 1998 and is ‘the primary means by which Convention rights are brought into the law of this country’ (Ghaidan v Godin-Mendoza [2004] 2 AC 557, per Lord Nicholls, at [26]).b. Section 3 HRA 1998 is a ‘powerful tool whose use is obligatory. It is not an optional canon of construction’ (Re S (Care[18]The classic articulation of this principle is set out in the speeches in Ghaidan v Godin-Mendoza. At [33], Lord Nicholls explained that:
‘Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary s 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed.’
[19]Lord Roger explained that s.3 HRA 1998 gives the court no power to ‘change black into white’ or to remove ‘the very core and essence’ or ‘pith and substance’ of what Parliament has enacted. Words implied must ‘go with the grain of the legislation’. Similarly, it is not open the court to depart substantially from a ‘cardinal principle’ of the legislation. (at [111], [113]-[116], and [121]).[20]In R (Friends of the Earth Ltd) v Secretary of State for Environment, Food and Rural Affairs [2025] PTSR 893, at [86], Chamberlain J suggested that the construction of a statute should be addressed in two stages:
‘…first, by ascertaining the ordinary meaning of the provision by applying domestic principles of statutory construction; secondly, if that exercise does not lead to the construction favoured by the claimants, by asking whether the latter construction is required to achieve compatibility with ECHR rights and is “possible” in terms of section 3 of the HRA.’
[21]At [87], Chamberlain J continued, explaining the importance of this two-stage approach, as follows:
‘This two-stage approach is important. Section 3 of the HRA is often relied upon in a case where there are two possible constructions of primary or secondary legislation and where one party favours a construction which, they submit, promotes the interests protected by the ECHR better than the other construction. But there is no general interpretive principle which requires the court to favour a construction which better promotes the interest which ground ECHR rights over one which promotes those interests less effectively. The obligation imposed by section 3 of the HRA is of relevance only when one of the competing constructions is incompatible with Convention rights. A construction will only be incompatible with Convention rights if the construction means that the UK will breach the obligations concerned, even after applying whatever margin of appreciation is applicable.’
[22]Mr Wilson acknowledges an interpretation of s.54 HFEA 2008 applying ordinary principles of statutory interpretation does not permit the court to make the order sought by A. This accords with the view reached by this court in Re X. In summary, because ss.54(1), (2), (4)(a), and (5) all require a joint application by two living applicants.[23]Mr Wilson submits, as it was in Re X, such an interpretation is incompatible with the ECHR.[24]In Re X at [94] this court determined that the ordinary construction of s54 HFEA is incompatible with the rights engaged in Article 8 EHCR of a person in A’s position. Mr Wilson submits that neither the children nor B had the opportunity to develop family ties for the purpose of establishing ‘family life’ pursuant to Article 8 EHCR. He acknowledges that any right on the part of B to develop such family ties ceased on his death. However, Mr Wilson submits, the Article 8 EHCR rights of the children to a private life is engaged. Those rights have been defined by the European Court of Human Rights (ECtHR) in Mikulic v Croatia [2002] ECHR27 at [53]-[54] as including ‘a person's physical and psychological integrity and can sometimes embrace aspects of an individual's physical and social identity. Respect for “private life” must also comprise to a certain degree the right to establish relationships with other human beings…’[25]In Mennesson v France (26 June 2014) (Application no. 65192/11), at [96], the ECtHR emphasised that “private life” includes legal recognition of the parent-child relationship, stating ‘…respect for private life requires that everyone should be able to establish details of their identity as individual human beings, which includes the legal parent-child relationship ...; an essential aspect of the identity of individuals is at stake where the legal parent-child relationship is concerned…’ At [100], the ECtHR emphasised that this takes on a ‘special dimension’ where legal recognition of genetic parenthood is concerned ‘Having regard to the importance of biological parentage as a component of identity…it cannot be said to be in the interests of the child to deprive him or her of a legal relationship of this nature where the biological reality of that relationship has been established and the child and parent concerned demand full recognition thereof….The Court considers, having regard to the consequences of this serious restriction on the identity and right to respect for private life of the third and fourth applicants, that by thus preventing both the recognition and establishment under domestic law of their legal relationship with their biological father, the respondent State overstepped the permissible limits of its margin of appreciation.’[26]Mr Wilson submits an application for a parental order engages a child’s right to their private life, of which their identity as a child of their intended parent is a key aspect. This has been established in a number of cases. A parental order has a ‘transformative effect’ (A v P [2012] Fam 188, at [24]). It ‘confers lifelong status on the applicant and deprives those who until then had parental status of that status on a lifelong basis’ (G v G (Parental[27]Mr Wilson recognises that the State has a wide margin of appreciation in matters of social policy, including surrogacy. Each case must be considered on its own merits and determine if, in the particular circumstances of the case, it falls outside of this margin and represents an unlawful interference with an individual’s EHCR rights.[28]In this case he submits, whilst A could meet the criteria under s54 HFEA 2008 on a sole basis, the making of such an order would fail properly to respect Y and Z’s identity rights under Article 8 EHCR in a number of ways.[29]First, it would extinguish any legal relationship they have with B, their genetic father and they would be unable to record his paternity on the official record of their birth. Mr Wilson submits such a result would be perverse and undermine Y and Z’s identity rights in circumstances where the evidence establishes:(i) Y and Z were conceived jointly by A and B as a deliberate joint choice to grow their family.(ii) B was actively involved at each stage of the surrogacy process.(iii) The surrogacy agreement makes clear in a number of places the intention of all three adults (A, B and G) was that Y and Z would become the children of A and B, both as a matter of fact and of law.(iv) B is named on the Country J birth certificate for Y and Z.(v) A and B chose the names for Y and Z prior to their birth,(vi) Y and Z are the genetic children of B and he is a shared genetic link between Y and Z and their older sibling. If a joint parental order is not made Y and Z will have a different legal relationship with B compared to their older sibling.(vii) A joint parental order is the only way Y and Z’s identity as the children of both A and B can be secured.[30]In her witness statement A set out the position from her perspective as follows:
‘…it is very important to me that [B] is named on [Y and Z’s]’s Parental Orders and that his name appears on their re-issued birth certificates. Without [B], [Y and Z] would not exist. It is a tragedy that they will not get to grow up with him, and that he is not here to enjoy the children he was so excited to meet. [Y and Z] will grow up knowing how loved they were by their father, and I want to ensure I do everything within my power to secure his presence in their lives. [B] will always feature in [Y and Z’s] lives and I look forward to watching them grow more and more like him each day. I want to ensure that [Y and Z] feel connected to their father and that they can make sense of their background by having myself and [B] named on the Parental Order.’
[31]Second, the effect of a sole parental order in this case would be that Y and Z’s currently subsisting legal relationship with their father would be extinguished by the court making a sole parental order.[32]The current position, by operation of common law, is B is Y and Z’s legal parent as he is their genetic parent and G is, and was at the relevant time, unmarried. If a parental order is made in favour of A only it would extinguish that existing legal relationship between B and Y and Z by virtue of section 67 ACA 2002 (applied by virtue of paragraph 12, Schedule 1 of the Human Fertilisation and Embryology (Parental Orders) Regulations 2018).[33]Mr Wilson submits this demonstrates that the ordinary construction of s54 HFEA 2008 (that precludes a parental order from being made in the joint names of both of the children’s parents) represents an interference with Y and Z’s Article 8 rights, that such an interference is disproportionate and, consequently, unlawful.[34]Mr Wilson recognises in assessing proportionality, the court must adopt the approach articulated in various authorities, such as R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] 1 WLR 3820, at [33]:
'With those considerations in mind, I turn to the issue of justification. It is now well established in a series of cases at this level…that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?'
[35]Mr Wilson relies on the conclusions reached in Re X at [93], and submits the consequence of the ordinary construction of s.54 HFEA 2008, which would preclude the making of a parental order in both parents’ names, is disproportionate to the aim of the legislation. Mr Wilson relies upon all of the reasons given in Re X in particular that at [93(5)] ‘A parental order is the only route by which X can have her status regarding Mr and Mrs Y recognised in a way that was intended by the surrogacy arrangement, which a parental order was specifically created for.’[36]Turning to Article 14 EHCR, Mr Wilson submits this court has already determined in Re X at [94] that the ordinary construction of s.54 HFEA 2008 is incompatible with the rights pursuant to Article 14 ECHR, in conjunction with Article 8, of a person in A’s position.[37]Mr Wilson submits, as in Re X, that the ordinary construction of s.54 HFEA 2008 interferes not only with Article 8 ECHR in isolation, but also with Articles 8 and 14 ECHR taken together. In short, Y and Z are discriminated against in respect of the protection of their “private life”, in that they are unable to secure legal recognition of their identity as the children of their deceased genetic father. In this respect, they, as children born through a surrogacy arrangement, are treated differently from those in a similarly relevant situation, namely those children who are conceived naturally.[38]In this case if the court makes a parental order in A’s sole name, this will extinguish B’s legal parenthood of Y and Z. As such, he will not be able to be named on their birth certificate. In contrast, the law provides that, where the genetic father of a naturally-conceived child dies post-conception but before the child’s birth, he may nevertheless be named on the child’s birth certificate. In Re X at [78], the court recorded the position as confirmed by the Registrar General in that case:
‘The General Register Office (GRO) have confirmed that if a biological father dies after conception but prior to birth of the child and the mother and father are married, when the child is registered the birth certificate would state the father’s name in space 4, occupation in space 6 and deceased would follow in brackets.’
[39]In Re X at [90] this court stated:
‘Article 14 of the European Convention is also engaged on the grounds that X’s Convention rights should be secured without discrimination of any ground, including birth or other status. Here X is not able, without a parental order being made, to have a birth certificate that reflects the relationship and connection that she has with Mr and Mrs Y as her parents, solely by virtue of the circumstances of her birth through surrogacy.’
At [94(6)], the court held that:
‘For X her connection with her biological father would be safeguarded in any other birth circumstances naturally or by way of assisted conception, consequently it is discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement amounts to a breach of her Art 14 right to enjoy her Art 8 rights without discrimination on the grounds of birth.’
At [94(8)], the court explained the consequence of this discrimination, to the child’s identity rights.[40]Mr Wilson submits, adopting the same reasoning as in Re X at [93] – [94], there can be no justification for this difference in treatment and there is no other means by which B’s parenthood can be legally recognised alongside that of A. Further, as this court explained in Re X, that difference in treatment runs contrary to the intentions of Parliament in enacting s.54 HFEA 2008.[41]In his submissions Mr Wilson notes that the court in Re X did not consider the decision of Lieven J in R (H) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin). That case concerned ss.35 and 38 HFEA 2008. Lieven J found that the inability of a genetic father to be named on a child’s birth certificate did not constitute an unlawful interference with either Articles 8 or 14 ECHR, in circumstances where a parental order was not available because the surrogate mother did not consent to the making of it. The present circumstances are different, in that the requirements for the making of a parental order under s54 are met.[42]Mr Wilson submits the ordinary construction of s.54 HFEA 2008, which denies Y and Z the opportunity to have the legal parenthood of both of their parents recognised by law, and to have that parenthood registered on their birth certificates, is also an unlawful and disproportionate interference with their rights pursuant to Articles 8 and 14 ECHR taken together.[43]Mr Wilson submits the court should adopt the same reading down that it did in Re X at [58], namely:
‘54(1) On an application made by two applicants [or on an application brought on behalf of two applicants who, but for the fact that one of the applicants has died after the conditions in s 54(1)(a) were met, would have met the requirements of s 54(1)(b) and s 54(2)] (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if— (a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination, (b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and (c) the conditions in subsections (2) to (8) are satisfied. (2) The applicants must be [or in the case of an application where an applicant has died were immediately prior to the applicant’s death]— (a) husband and wife, (b) civil partners of each other, or (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other. (3) [No amendment required] (4) At the time of the application and the making of the order— (a) the child’s home must be with the applicants [or in the case of an application where an applicant has died and the application is brought on his or her behalf by the surviving applicant, the child’s home must be with the surviving applicant], and (b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands of the Isle of Man. (5) At the time of the making of the order both the applicants must have attained the age of 18 [or in a case where an applicant has died, the deceased applicant must have attained the age of 18 before his or her death].’
Section 54(6), (7) and (8) – no amendment required.’[44]As in Re X, Mr Wilson submits such an interpretation is permissible for the reasons set out in Re X at [63] – [77] and [94(4)] as to the limits of s.3 HRA 1998, and the extent to which the reading down is a permissible interpretation, which does not go against the ‘grain of the legislation’.[45]Mr Wilson submits the observations of Sir James Munby P in Re X (A Child) (Surrogacy: Time Limit) at [58], apply with equal force to this proposed interpretation, namely:
‘No one – not the surrogate parents, not the commissioning parents, not the child – will suffer any prejudice if the application is allowed to proceed. On the other hand, the commissioning parents and the child stand to suffer immense and irremediable prejudice if the application is halted in its tracks.’
[46]Turning to consider the s 54 HFEA 2008 criteria within that legal framework Mr Wilson sets out they are met in this case in the following way:(1) Y and Z were carried by G as the result in the placing in her of an embryos created using the gametes of A and B (s54(1)).(2) A and B were married at the time of B’s death (s54(2)).(3) The C51 application was made within 6 months of Y and Z’s birth (s54(3)).(4) Y and Z’s home would have been with A and B both at the time of the application and at the time of the hearing were it not for B’s sudden and unexpected death (s54(4)(a)).(5) A’s domicile of choice is the United Kingdom, having lived here since she was a young child (s54(4)(b)).(6) A and B would have both been over the age of 18 years at the time of the making of the parental order (s54(5)).(7) G was unmarried at the time of conception and has provided her written notarised consent to the making of a parental order on 11 June 2024 and spoke to the previous parental order reporter on 7 October 2024 when she confirmed her continuing consent by signing Forms A101A (s54(6)). There is evidence that G had notice of the hearing through a WhatsApp message via the clinic.(8) The sums paid by A and B to the agency and G other than for expenses reasonably incurred should be authorised. G signed a declaration stating she had received the sum of 22,200 Euros and A has provided what information she can about the payments to the agency in accordance with their agreement. Mr Wilson submits the level of payments made to G are within the level of payments previously authorised by the court in similar cases and there is no suggestion A or B have acted other than in good faith (s54(8)).[47]If the court is satisfied that the requirements under s54 HFEA 2008 are met Mr Wilson submits the lifelong welfare considerations under section 1 Adoption and Children Act 2002 (ACA 2002) are established in this case. The parental order reports fully support a parental order being made.[48]In her written and oral submissions on behalf of Y and Z Ms Lee adopts the analysis of the law and facts set out by Mr Wilson.

Discussion and decision

[49]As in Re X, against the difficult and tragic background of this case all the welfare instincts of this court powerfully point towards a parental order being made. However, despite those welfare considerations, it is necessary for the court to carefully scrutinise each of the relevant requirements under s54 HFEA 2008 to see if they are met, with the added complication in this case of considering whether the court can ‘read down’ the relevant provisions pursuant to s 3 HRA 1998.[50]In Re X this court set out the relevant legal framework between [19] – [54], the relevant parts of which are summarised above. The conclusions reached regarding that legal framework in Re X are set out between [86] – [90] and summarised by the conclusions at [93] – [95] as follows: 93. Can Parliament have intended that in circumstances such as this where the intended father dies after the embryo transfer but before the child’s birth that, adopting the words of Munby P in Re X paragraph 55, the ‘gate should be barred forever’. I cannot think so for a number of reasons:(1) As in Re X, Parliament has not explained its thinking why such a situation is excluded, when but for Mr Y’s death prior to the birth all the requirements under s 54 would have been met following X’s birth. There is no reason to believe Parliament either foresaw or intended the potential injustice which would result in this case if a parental order cannot be made in the circumstances in this case.(2) Other provisions in the HFEA 2008 (ss 35 – 37) provide clarity about the status of the father of the child born as a result of assisted conception at the time when the embryo is transferred, or artificial insemination takes place, provided certain safeguards are in place, in particular consent. Consent is not an issue in this case, any consent required by s 54 is present and secure.(3) The provisions set out in ss 39 and 49 HFEA provide clarity as to the status of the father in the circumstances of sub-paragraph (2) where they take place after his death, again with safeguards in place relating to consent.(4) Parliament has recently, when considering the declaration of incompatibility made by the court in Re Z (No 2), signalled that it seeks to ensure that the law does not discriminate against different categories of applicants for parental orders on the grounds of relationship status.(5) A parental order is the only route by which X can have her status regarding Mr and Mrs Y recognised in a way that was intended by the surrogacy arrangement, which a parental order was specifically created for. 94. That conclusion is equally justified having regard to the Convention rights involved for the following reasons: (1). Both Articles 8 and 14 are engaged. (2) Munby P foreshadowed at paragraph 61 in Re X a situation such as this, when he highlighted the part of Article 8 that protects ‘private life’; as he stated there may be cases where it may be more difficult to establish ‘family life’. Here X did not have the opportunity to establish ‘family life’ due to the premature death of Mr Y, but X certainly has an established ‘private life’ right for her own identity to be protected by legal recognition of her relationship with Mr Y. The court’s responsibility is to ‘guarantee not rights that are theoretical and illusory but rights that are practical and effective’ (Marckx v Belgium (1979 – 80) 2 EHRR 330 at paragraph 31). As Russell J observed in Re A and B [2015] EWHC 911 at paragraphs 62 – 63: “62. It is undeniably a basic and fundamental part of these children's identity as human beings that the Applicant/father is their biological father, and that the Applicant/mother played a full part in the process of their conception having selected an egg donor, as she has herself explained to them and as they have grown up believing. The Applicants were their planned and intended parents from before conception and since the day on which they were born. All of these facts, fundamental to these children's very existence and identity are far from those present in adoption. Again I quote from the President's judgment in Re X; "Adoption is not an attractive solution given the commissioning father's existing biological relationship with X. As X's guardian puts it, a parental order presents the optimum legal and psychological solution for X and is preferable to an adoption order because it confirms the important legal, practical and psychological reality of X's identity; the commissioning father is his biological father and all parties intended from the outset that the commissioning parents should be his legal parents."[63]To make adoption orders would effectively deny adequate recognition of the Applicants' and children's identity and their right to family life under Article 8 ECHR, particularly their established identity, their biological and social ties. There is no doubt in this case that as far as these children are concerned their identity has already been formed as the biological children of their father and the commissioning of their conception and birth involving their mother.” (3). Although I have concluded that Parliament cannot have intended that a child in X’s position would be excluded from such recognition, without the ‘reading down’ required by s 3 the provisions s 54 (1), (2) (a) (4) (a) and (5) could prevent a parental order being made. (4). From the extensive review set out above it is clear such a reading down does not go against the ‘grain of the legislation’, on the contrary it seeks to provide the order that it is accepted best meets a child born as a result of this type of arrangement. The parental order was specifically created for a child born as a result of a surrogacy arrangement, such as in this case. (5). No alternative order that can properly and accurately to reflect X’s identity, including her relationship with Mr Y. A child arrangement or special guardianship order in favour of Mrs Y would mean Mrs Y secures parental responsibility limited to X’s minority, but such an order would not negate X’s legal relationship with Mr and Mrs Z, and would result in her biological father remaining a legal stranger to X.Mrs Y could apply for an adoption order, but only as a single applicant, which may give her the status of a legal parent but it will not accurately reflect X’s identity in relation to either Mr or Mrs Y. This route would create something of a legal fiction, as s 67 ACA states that the effect of an adoption order is the adopted person is to be treated in law as if born as a child of the adopter, which does not reflect the reality of the surrogacy arrangement entered into. In addition, such a course could have a distorting effect as Mrs A would be an adoptive parent, the register would be marked that way and the tracing of the child’s natural parents is still done in the same way as for any other adopted child. (6). For X her connection with her biological father would be safeguarded in any other birth circumstances naturally or by way of assisted conception, consequently it is discriminatory for the circumstances of her birth to prevent this. A failure of the law to recognise her connection with her biological father as the result of her birth through a surrogacy arrangement amounts to a breach of her Article 14 right to enjoy her Article 8 rights without discrimination on the grounds of birth. (7). Mrs Y’s article 14 rights are also engaged. She is discriminated against based on her relationship status as a widow, rather than being married. In Re Z (No 2) Munby P stated at paragraph 17 "Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple." (8). The consequences of not making a parental order in this case is that there is no legal relationship between X and her biological father; X is denied the social and emotional benefits of recognition of that relationship; X may be financially disadvantaged if there is not legal recognition as the child of her biological father; X does not have a legal reality that matches the day-to-day reality; X is further disadvantaged by the death of her biological father. (9). The only order that will confer joint and equal parenthood on Mr and Mrs Y is a parental order. Only that order will ensure X’s security and identity in a lifelong way respecting both her Article 8 and 14 rights.[95]It is clear that reading down the provisions in s 54 (1), (2) (a), (4) (a) and (5) in this case to permit the parental order to be made would not be incompatible with the ‘underlying thrust of the legislation being construed’ and the words sought to be implied ‘go with the grain of the legislation’. The HFEA sought to provide a comprehensive legal framework for those undertaking assisted conception, with the aim of securing the rights of any child born as a result. That policy and legislative aim remains intact if the order sought in this case is made.[51]Those same conclusions apply with equal force on the facts of this case. The additional feature in this case is the irony that if for some reason the court could not reach the same conclusion as it did in Re X the consequences for Y and Z’s rights under the EHCR in this case are more complex. They currently have a legal relationship with B as a consequence of him being their legal father at common law, as G was not married at the relevant time. If the court made a parental order in favour of A only, due to the operation of s67 ACA 2002, B’s existing legal relationship with Y and Z would be extinguished. If the court does not make a parental order then Y and Z retain their legal relationship with B, but would not be able to acquire the lifelong legal parental relationship with A who cares for them full time.[52]Having agreed that the C51 application can be amended and that the way s54 was read down in Re X applies equally in this case, I am satisfied that the relevant s54 criteria are met by the evidence filed by A in the light of the Convention compliant reading down in accordance with Re X.[53]In summary, the application is made by A and on behalf of B who died after the embryos, created using both A and B’s gametes, were transferred to G. As a result of the embryo transfer, G gave birth to Y and Z and the evidence filed satisfies the requirements in s54 (2) – (8). A and B were married at the time of his death, Y and Z have had their home with A since their birth and A is domiciled here. A is over 18 years and B was at the time of his death. The application was issued less than 6 months after Y and Z’s birth. The respondent, G, consents to the making of a parental order and that consent was given more than six weeks after Y and Z’s birth. The only part of the payments that have been made, other than those that relate to expenses reasonably incurred, should be authorised by the court.[54]The s 54 HFEA 2008 criteria having been met, the relevant welfare considerations are analysed in the two parental order reports. In the first report the parental order reporter concluded A ‘presented as a mother who is willing, motivated and invested in ensuring her children are well looked after, in a steady and calming routine where their basic care needs and emotional needs are met’. In the most recent report the parental order reporter concluded ‘[A] has demonstrated resilience and a capacity to continue meeting her children’s needs and pro-actively seeking emotional support for herself and her oldest child) to assist in her healing which is to her credit.’ Later in that report, supporting the recommendation for a parental order to be made, the parental order reporter concluded this ‘will afford [Y and Z] the permanency they require whilst also supporting their identity as children born via surrogacy’.[55]From the evidence I have seen, I am satisfied that the lifelong welfare needs of both Y and Z require the court to make a parental order for each of them, as only that order will recognise the reality for each of them as children of their parents, A and B.

Order

Death of Intended Parent Prior to Birth) [2020] 2 FLR 1326 and Y v W [2022] EWFC 34. Order: Implementation of Care Plan) [2002] AC 291, per Lord Nicholls, at [37]). c. The interpretative obligation ‘is a strong one’, which ‘places a duty on the court to strive to find a possible interpretation compatible with Convention rights’ (R v A (No. 2) [2002] 1 AC 45, per Lord Steyn, at [44]). d. It imposes a ‘remarkably powerful interpretative obligation which goes well beyond the normal canons of statutory construction’ (In re United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] 1 WLR 5106, per Lord Reed, at [25]). e. As such, s.3 HRA 1998 creates an ‘interpretative obligation’ of ‘an unusual and far-reaching character’ which ‘may require a court to depart from the unambiguous meaning the legislation would otherwise bear’ and which may require the court to ‘depart from the intention of the Parliament which enacted the legislation’. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant (Ghaidan v Godin-Mendoza, per Lord Nicholls, at [30]; [32]). f. When a court, called upon to construe legislation, ascribes a meaning and effect to the legislation pursuant to its obligation under section 3, it is important the court should identify clearly the particular statutory provision or provisions whose interpretation leads to that result (Re S (Care Order: Implementation of Care Plan) [2002] AC 291, per Lord Nicholls, at [41]). g. The court will also be familiar with the limits to the court’s interpretative obligation under s.3 HRA 1998. As Lord Nicholls stated in Re S, ‘the reach of this tool is not unlimited’ and the courts ‘must be ever mindful of this outer limit’ (at [38]-[39]). Order: Revocation) [2013] 1 FLR 286, at [33]). In Re X (A Child) (Parental Order: Time Limit) [2015] Fam 186 at [54] Sir James Munby P stated ‘Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are. It is central to his being, whether as an individual or as a member of his family.’ In Re L (A Child) (HFEA – Declaration of Non-Parentage) [2016] 4 WLR 147 Sir James Munby stated at [31] ‘This is not just a matter of status. Transcending even status, it goes to the very identity of the child as a human being, who he is and who his parents are; it is central to his being, whether as an individual or as a member of his family.’ In Re A (Legal Parenthood: Written Consents) [2016] 1 WLR 1325, at [2], Sir James Munby P observed that ‘What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?’