Surrogacy and fertility law
The need to take a creative approach
Over the past few decades, there has been a dramatic expansion in the use of assisted reproductive technologies for building families. This rapid development has meant that the law has often been playing catch up, and judges have been required to apply legislation to situations that were unprecedented at the time that the legislation was originally drafted.
Over the years there have been numerous calls for legislative reform to allow for developing technologies, familial structures and public attitudes. Most recently, there has been a call to reform the surrogacy laws, which are widely recognised as being inadequate in light of modern practice. This resulted in the Law Commission’s 2019 surrogacy reform consultation.
In addition to concerns regarding the law being out of date, the legislature and the courts are faced with the additional hurdle that, even when newly drafted, it is not possible for the law to account for and apply to all possible eventualities. In these instances, the judges are instead required to take a creative approach to applying the law. To do this they must take into account the spirit of the law, any relevant human rights considerations and, most importantly, the best interests of the child involved.
The potential for gaps in the law was highlighted in the case of Re X heard before the High Court in May 2020. In this case there was a surrogacy arrangement between Mrs Y and Mr Y (the intended parents), and Mrs Z (the surrogate) and Mr Z (the surrogate’s spouse). An embryo was created using Mrs Z’s eggs and Mr Y’s sperm, meaning that Mr Y was the biological father of the child (X). Under UK law, a parental order is required following the birth of the child in order to recognise Mr and Mrs Y as the child’s parents. Sadly, Mr Y died suddenly and unexpectedly before the birth of X and therefore before an application was made for a parental order. Mrs Y made an application to the court on behalf of both herself and her deceased husband (Mr Y) for a parental order.
Applying a strict construction of the relevant legislation meant that Mrs Y did not meet the requirements for the making of a parental order, and the law was otherwise silent on her situation. However, it was argued on her behalf that the judge should read additional wording into the law to include this situation, taking into account human rights and the intention of parliament when drafting the legislation. Above all else, the judge was reminded that this additional wording would not “go against the grain” of the law on surrogacy. The judge did take a creative approach and agreed that these additional words could be read into the statute, and that X’s welfare required the court to make a parental order.
This scenario provides a powerful reminder that new ground is continually being broken in fertility law, and that it not possible for the legislature to cater for every eventuality or situation which may come before the courts. Whilst it remains true that the law on surrogacy in the UK is in need of reform, in truth the circumstances arising in Re X were not even considered in the 2019 surrogacy reform consultation. Instead in these instances, judges must continue to do the best they can with the existing law by considering the bigger picture of the situation and taking a creative approach.
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