reforming surrogacy law

The case of AY & Another v ZX, published this week, provides judicial confirmation that s54 Human Fertilisation and Embryology Act 2008 applies to private surrogacy arrangements, granting parental orders to twin children that had been conceived through home insemination. 

Background to the case

Despite a relatively straightforward factual matrix, the case was referred from the magistrates to Macdonald J in the Family Court resulting from concerns as to whether the provisions of the Human Fertilisation and Embryology Acts of 1990 and 2008 could apply to private arrangements that took place outside of a licensed clinic.

The surrogacy arrangement, resulting in the birth of the children in 2021, was formed through an existing friendship, with the surrogate offering to act in this role after the intended parents had started to make enquiries into surrogacy to form their family.  Despite some medical complications for one of the children shortly after birth, the arrangement went smoothly, and all parties agreed that a parental order should be granted.  The parental order reporter was also of the view that it would be in the best interests of the children for the intended parents to be recognised as their legal parents.

Notwithstanding the consensus that parental orders would be the best judicial outcome, the Legal Advisor was concerned about the application of the provisions of the HFE Act to a home insemination scenario, and the case was therefore re-directed to the Family Court.

The decision

In this relatively short judgment, Macdonald J confirmed that s54 does apply to home insemination surrogacy arrangements.  The concerns over the applicability of the legislation to private arrangements outside of a licensed clinic stemmed from the fact that various provisions under Part II of the Act, relating to the determination of parenthood, do specifically apply to treatment within a licensed clinic.  For example, ss 36 and 37 outlines how a man can be treated as the father of a child in circumstances ‘where the embryo or the sperm and eggs were placed in W, or W was artificially inseminated, in the course of treatment services provided in the United Kingdom by a person to whom a licence applies’ (s36(a)). 

In the words of Macdonald J, however:

In this case however, the court is not concerned with the legal status of the applicants under Part II of the 2008 Act per se. Rather, the court is concerned with the separate and quite different question of whether the applicants are entitled to apply for a parental order following the birth of the children via a surrogacy agreement. The answer to that question is governed by the terms of s.54 of the 2008 Act, which define the circumstances in which the court has jurisdiction to make such orders if they are in the best interests of the children.

Para 19 of judgment.

Therefore, the decision was made by reference to s54 alone, without needing to consider it within the wider context of the other provisions in the Act.

In relation to the applicability of s54, s54(1) states:

On an application made by two people (“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(8A) are satisfied.

It is therefore clear that in a home insemination scenario, these requirements are still met: the surrogate carried the child as a result of ‘the placing in her of… sperm’ of one of the intended parents.  There is nothing within the wording of s54(1) which would necessitate the insemination to have taken place within a licensed clinic.

Alongside adopting a literal interpretation to the statutory provision, Macdonald J further relied on other considerations to demonstrate that this was the correct construction of the Act:

• The explanatory notes (a document that explains the purpose of an Act) that accompany s54 make no reference as to how the insemination must take place;
• In the Supreme Court case of Whittington Hospital NHS Trust v XX, when it was confirmed that medical negligence damages could include costs associated with surrogacy, no reference was made to treatment being required to take place within a licensed clinic;
• Governmental, NHS and Human Fertilisation and Embryology Authority guidance make no reference to the necessity for insemination in surrogacy arrangements to take place at a licensed clinic. To the contrary, the government guidance explicitly refers to how self-insemination at home can be the first step in a surrogacy journey. 

The other s54 requirements

Macdonald J did not need to explore the remaining s54 requirements in much depth, given the ease with which they could be satisfied.  In summary:

• The intended parents were married, thus meeting the requirement relating to relationship status.
• Despite applying 27 days beyond the 6-month time limit, it was appropriate to interpret the time limit purposively in accordance with established case law.
• The children’s home was with the intended parents, and both applicants were domiciled in the UK (one by way of domicile of origin, and one by way of domicile of choice).
• Both intended parents were over 18 years old, thus meeting the age requirement.
• No more than reasonable expenses had been paid, including payments for items such as maternity clothing, vitamins and travel costs.
• The surrogate consented to the granting of the parental order.  However, the consent requirement did require further consideration in light of the surrogate’s marital status.

The surrogate, despite being married, was separated from her husband and was not in contact with him.  It was therefore necessary to consider whether her husband needed to consent to the granting of the parental order given s54(6)(b), which states that ‘any other person who is a parent of the child… must have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order’. 

It was held that given their separation, her husband was not aware of the surrogacy arrangement and could therefore not be shown to have consented to it (this being the requirement in order for him to acquire legal parenthood under s35 HFE Act).  As such, Macdonald J was of the view that he was not a parent of the children and therefore did not need to give consent under s54(6)(b).  Although Macdonald J referred to this in terms of the husband acquiring ‘parental responsibility’, it is important to recognise that legal parenthood is a separate concept to parental responsibility, and it is the holding of legal parenthood that leads to the necessity for consent.

Commentary

A literal reading of s54 would appear clear: so long as the surrogate is carrying a child resulting from the placing in her of an embryo or sperm and eggs, the provisions can apply so that a parental order can be granted.  Nonetheless, judicial confirmation of this reading is welcomed, providing clarity as to the applicability of the provisions in home insemination cases. 

What is perhaps more surprising is that this is the first time the issue has been presented.  This may raise questions of how many private surrogacy arrangements, using home insemination methods, have taken place without the intended parents subsequently securing their legal parental status through a parental order.  As discussed in an earlier post, without a parental order being granted, the surrogate would retain legal parenthood resulting in a disparity for the child between their lived reality and legal identity. 

The Law Commissions, within their Final Report, have recommended the creation of a new pathway, which would allow intended parents to be recognised as the legal parents from birth, where the necessary pre-conception checks and processes have taken place.  Despite there being medical screening requirements for eligibility on the new pathway (discussed in detail here), there is no requirement for the conception/insemination to take place within a licensed clinic.  As such, the recommendations align with the approach seen in this case – it would be equally possible for intended parents to be recognised as the legal parents of a child born as a result of a private surrogacy arrangement.  However, the Regulated Surrogacy Organisation would need to have worked with the parties prior to the home insemination in order to ensure all of the pre-conception requirements have been met.  If not, the case would not be eligible for the pathway, and the intended parents would need to apply for a parental order after birth, as is currently the situation.

As recognised both in this case and in the Final Report, there may be heightened health risks associated with home insemination because there would not be the same screening of gametes that would take place within a licensed clinic setting.  For intended parents providing gametes through licensed clinics, there are standard clinical procedures for testing.  These would not be viable in a home insemination context, although the recommendations relating to the new pathway would require the intended parent providing gametes to undergo STI screening in order to be eligible for entry onto the new pathway.   

Where it is possible to do so, parties undertaking surrogacy may continue to opt for home insemination for several reasons.  It eliminates costs associated with licensed clinics, and may be perceived as a more informal and less ‘clinical’ way to achieve pregnancy.  It is important that parties who choose to engage in private surrogacy arrangements are afforded the same legal protections – this recent decision, and the recommendations relating to the new pathway, will ensure this is the case.