F, Re
[2024] EWHC 2849 (Fam)
XW (Parental Order: Death of An Applicant), Re
14 May 2024
[2024] EWHC 2082 (Fam)
High Court
A couple used a surrogate to have a baby. One parent died before the legal process to make them the official parents was finished. The judge decided to let the surviving parent and the deceased parent be officially recognized as the baby's parents, even though one was dead, because it was in the baby's best interests.
Key Facts
- •XW, born May 2023, is the subject of a parental order application.
- •Application made under section 54 of the Human Fertilisation and Embryology Act 2008.
- •Second applicant (F) died unexpectedly in December 2023.
- •XW was born through a gestational surrogacy arrangement in Nigeria.
- •Surrogate (Y) consented to the parental order.
- •Applicants (M and F) made payments to the surrogate totaling £16,726.00.
- •First applicant (M) and XW are now residing in London.
Legal Principles
Purposive interpretation of the term 'home' in section 54(4)(a) of the Human Fertilisation and Embryology Act 2008, considering various circumstances including the death of an applicant.
X & Anor v B & Anor [2022] EWFC 129; A v P (Surrogacy: Parental Order: Death of the Applicant) [2011] EWHC 1738 (Fam); Re X [2020] EWFC 39; D, G v ED, DD, A, B [2015] EWHC 911 (Fam); Re X (A Child) (Surrogacy: Time Limit ) [2014] EWHC 3135 (Fam)
Article 8 ECHR (right to respect for private and family life) and Article 14 ECHR (prohibition of discrimination) are engaged in parental order applications, particularly where the death of an applicant complicates matters.
Various case law cited in paragraphs 16 and 18.
Section 54 of the Human Fertilisation and Embryology Act 2008 sets out the criteria for making a parental order, including domicile, home, consent, and payments.
Human Fertilisation and Embryology Act 2008, section 54
The welfare of the child is paramount in determining parental order applications. Adoption and Children Act 2002 welfare checklist is relevant.
Adoption and Children Act 2002
Outcomes
Parental order granted to M and F (posthumously).
The court found that all statutory criteria under section 54 of the Human Fertilisation and Embryology Act 2008 were met, including a purposive interpretation of 'home' in light of F's death, and that the order was in XW's best interests.