1.As the law stands, where a child is born as the result of a surrogacy arrangement, a couple can apply for a parental order for that child within a period of six months after its birth, providing that the gametes of at least one of them were used to bring about the creation of the embryo. A single person whose gametes were used to create an embryo carried by a surrogate cannot do so. At the heart of this issue is the right to family life and the right of children and their biological parent to have their parental relationship legally recognised following a surrogacy arrangement, whether that parent is in a relationship with another person or not.
2.In Re Z (A Child) (No. 2) the court found this distinction between single parents and couples was incompatible with the right to private and family life and to non discrimination under the European Convention on Human Rights 1950 (“Convention”). The Committee welcomes the Government’s action in proposing the draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 to remedy the incompatibility of section 54 of the Human Fertilisation and Embryology Act 2008 (“HFEA”) and also in seeking to make the necessary consequential amendments that follow from those changes.
3.The power to amend statute by delegated legislation is unusual and carefully controlled. The Committee considers that the procedural requirements of the Human Rights Act 1998 (“HRA”) HRA have broadly been met in this case. The reasons relied on by the Government for proceeding by way of remedial order rather than by Bill are clearly capable of being sufficiently “compelling reasons”. Further, remedying the incompatibility by way of a non-urgent order, rather than an urgent order, strikes a reasonable balance between the competing considerations of the need to avoid undue delay before remedying the incompatibility and the need to afford a proper opportunity for parliamentary scrutiny.
4.The Remedial Order seeks to remedy the incompatibility by inserting a new s54A into the HFEA, which allows one person to apply for a parental order but only to do so if he or she is not in an enduring family relationship. According to that proposed drafting, if that person is considered by the Courts to be in an enduring family relationship with a partner, then they can only apply for a parental order as part of a couple and their partner will then be recognised as an equal parent of the child (whether or not that partner has any biological relationship to the child). The Government has not explained why it is necessary for someone applying for an order to prove that they are not in an enduring family relationship (something which might be relevant in an application for adoption) in order to have their biological relationship with their child legally recognised under HFEA. Nor has the Government explained why it is necessary to require a single parent’s partner with no biological relationship to the child (and no desire to be recognised as such a parent) to be recognised as that child’s parent merely in order for the biological parent to be so recognised. The State would not seek to create such barriers to the legal recognition of the relationship between a biological parent and child where there was no surrogacy arrangement involved. It seems surprising that a single applicant parent should need to prove to the Courts that they are not in an enduring family relationship with their partner, or that such a partner should be forced either to become an equal parent of that child or to effectively veto the recognition of that parent-child biological relationship. In this context, the Committee draws the special attention of both Houses to the proposed Order on the grounds that it makes an unexpected use of the enabling power. Moreover, we draw the attention of both Houses to a doubt as to whether the Order is intra vires. This is because the vires in section 10 of the HRA are for the Minister “to make such amendments to the legislation as he considers necessary to remove the incompatibility”; this Order does not adequately remove the incompatibility because it fails to address the human rights of a child and his/her biological parent, where that parent also wants to assert the human rights associated with building an enduring family relationship, without requiring their (new) partner to assert a non-existent quasi-biological relationship with a child.
5.Draft section 54A(3) requires a person who has separated from their spouse or civil partner to prove to the Courts that their separation is likely to be permanent. Given that applications for parental orders must be made within 6 months of a child’s birth this may not be possible, and the child concerned could be left in legal limbo. Were this drafting to remain, the Committee would want to bring the special attention of the two Houses to subsection (3)(b) of the proposed section 54A of the HFEA on the grounds that there is a doubt whether it is intra vires, because it goes beyond the minimum amendments necessary to remove the incompatibility, by imposing a condition which may be difficult to satisfy and is not related to any obvious policy justification.
6.The Committee notes that the Order has already required correction of a serious drafting defect and the report explores further possible drafting defects in the proposed Order (see Chapter 4 of this Report). The Committee welcomes the Department’s commitment to making amendments to the draft Order as necessary.
7.Finally, the Committee encourages the Government to remedy outstanding incompatibilities with Convention rights as swiftly as possible; clarifies its understanding of the scope of section 10 HRA; encourages the Government to clarify how it considers the Courts would apply the six month deadline; notes with interest the forthcoming work of the Law Commission on surrogacy; and seeks clarification from the Government that it has complied with the consent requirements in relation to Schedule 2.
8.While the Committee welcomes the Government’s decision to use the remedial order process in this case, in the report we raise a number of significant concerns about the Government’s drafting approach. We recommend that the proposals are amended to address these drafting concerns and that the Government then lay that draft order before both Houses.
1 Z (A Child) (No. 2)  EWHC 1191 (Fam)
1 March 2018