Background
A and B were a married British couple who pursued surrogacy in Ukraine after experiencing secondary infertility. In 2023 they entered a surrogacy arrangement with G, a Ukrainian national, using embryos created from both their gametes. The surrogacy agreement expressly contemplated the death of one intended parent and provided that the surviving parent would remain bound by its terms. Tragically, B died in late 2023, just before the birth of twins Y and Z in early 2024. A travelled to Ukraine, collected the children, and brought them to the family home in England, where they have lived ever since. B was recognised as the children’s legal father under English common law by virtue of being their genetic father and G being unmarried at the relevant time.
A applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008). However, section 54 in its ordinary construction requires a joint application by two living applicants: it mandates that the applicants be a couple, that the child’s home be with “the applicants,” and that both applicants have attained age 18 at the time the order is made. A therefore sought, with the benefit of pro bono representation from Forsters LLP, to amend the application to include B posthumously, asking the court to “read down” those provisions under section 3 of the Human Rights Act 1998 (HRA 1998) so that a joint parental order naming both A and the deceased B could be made.
The case was heard by Mrs Justice Theis DBE. The children’s Guardian, represented by Ms Jessica Lee, supported the application. G, the surrogate, did not attend but had provided notarised written consent and confirmed her continuing consent through a signed Form A101A. The key concern was that a sole parental order in A’s name alone would, by operation of section 67 of the Adoption and Children Act 2002, extinguish B’s existing legal parenthood entirely — leaving Y and Z without any legal recognition of their relationship with their genetic father and unable to have his name recorded on their re-issued English birth certificates.
The Court’s Holding
Mrs Justice Theis applied the same section 3 HRA 1998 “reading down” she had previously adopted in Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] 2 FLR 1326 and confirmed in Y v W [2022] EWFC 34. The court held that the ordinary construction of section 54 HFEA 2008 — requiring two living applicants — is incompatible with the Article 8 ECHR right of Y and Z to private life, which encompasses the legal recognition of their identity as the children of both their parents, including their deceased genetic father. It is also incompatible with Articles 8 and 14 ECHR taken together, because children born through surrogacy are treated less favourably than naturally conceived children: where a genetic father dies post-conception but pre-birth in a natural conception, he may still be named on the birth certificate, whereas without a reading down, a surrogacy-born child in the same position cannot achieve equivalent recognition.
The court confirmed that the proposed reading down — inserting words into sections 54(1), (2), (4)(a), and (5) to permit an application brought on behalf of a deceased intended parent by the surviving applicant — does not cross the constitutional boundary identified in Ghaidan v Godin-Mendoza [2004] 2 AC 557. It goes with the grain of the legislation rather than against it, because Parliament created the parental order specifically as the optimum legal vehicle for children born through surrogacy arrangements, and there is no indication Parliament intended to exclude cases where a parent dies after embryo transfer but before birth. All substantive requirements of section 54 were satisfied: the embryo was created from both applicants’ gametes; A and B were married; the application was made within six months of birth; the children’s home was with A; A was domiciled in the United Kingdom; both A and B had attained 18; G consented; and the payments made (€22,200 to G, plus agency fees) were authorised as reasonable in the circumstances.
The court made a joint parental order in the names of both A and B, and permitted the amendment of the C51 application form to include B. It also authorised the payments made under section 54(8) HFEA 2008, being satisfied that A and B had acted in good faith and that the sums were within the range previously sanctioned in comparable cases. The lifelong welfare considerations under section 1 ACA 2002 were fully satisfied, with parental order reports supporting the order.
Key Takeaways
- Where an intended parent dies after embryo transfer but before the birth of a child through surrogacy, the Family Court will read down section 54 HFEA 2008 under section 3 HRA 1998 to permit a joint parental order naming both the surviving and the deceased intended parent, following the precedent in Re X [2020] 2 FLR 1326.
- A sole parental order in the surviving parent’s name is legally and ethically inadequate in such cases: by virtue of section 67 ACA 2002, it would extinguish the deceased genetic parent’s already-subsisting legal parenthood, violating the children’s Article 8 identity rights and discriminating against them compared to naturally conceived children under Articles 8 and 14 ECHR.
- The court confirmed that the section 3 reading down does not go against the grain of the HFEA 2008: Parliament created parental orders as the optimum instrument for surrogacy-born children, and the reading down serves rather than subverts that purpose.
- Payments to a surrogate for a Ukrainian international surrogacy arrangement (here €22,200 to G plus agency fees) may be authorised under section 54(8) where the intended parents acted in good faith and the sums are consistent with levels approved in prior cases.
- The C51 application form can be amended under FPR r 13.3(5) and r 4.1(3)(o) to add a deceased intended parent as a named applicant, furthering the overriding objective of dealing with cases justly and with regard to welfare.
Why It Matters
This decision consolidates and extends the line of authority begun in Re X [2020], confirming that the English Family Court will not permit a procedural accident of timing — the death of an intended parent between embryo transfer and birth — to deprive surrogacy-born children of legal recognition of both their parents. For practitioners, the judgment provides a clear template: where all section 54 criteria would have been met but for the death, the court will read in the necessary words under section 3 HRA 1998, and the surviving applicant should promptly amend the C51 to include the deceased co-applicant before the order is drawn.
More broadly, the case highlights a continuing gap in the HFEA 2008 that requires judicial correction through human rights interpretation rather than statutory provision. As the Law Commission’s surrogacy law reform project continues, this decision — and the Re X line — may inform Parliament’s eventual legislative response, underscoring the need for the statute to address explicitly what happens when an intended parent dies after conception but before birth in a surrogacy arrangement.