B e f o r e :
MR. JUSTICE KEEHAN ____________________
____________________
Andrew Powell (instructed by JMW Solicitors LLP) for the The Applicant The 1st Respondent did not attend and was not represented Katherine Duncan (instructed by Mills & Reeve) for the The 2nd Respondent Martin Kingerley (instructed by CAFCASS) for the The 3rd Respondent Hearing dates: 4th July 2017 ____________________
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Mr. Justice Keehan :
INTRODUCTION
In early 2017 A was born. His biological parents are the applicant, M and the first respondent, F. His legal parents are, however, the second respondent, SM and F, although he does not have parental responsibility for the child.
A was born as a result of a gestational surrogacy arrangement between the applicant and the first respondent. Their gametes were used to create an embryo that was then implanted in the second respondent on 29 May 2016. Immediately upon his birth the second respondent surrendered care of A to the applicant.
During the course of the second respondent's pregnancy, the relationship between the applicant and the first respondent ended. Unless the law is changed to permit applications for parental orders by a single applicant, the applicant will not be entitled to obtain this transformative order to become A's legal as well as biological parent.
In order to provide stability for the child and some legal status for the applicant, the court made A a Ward of Court on 28 February 2017, granted care and control of him to the applicant and prohibited the first respondent from removing the child from her care. The order contained the following recital:
The matter was then listed before me for directions on 12 April 2017 and further on 4 July when the parties invited me to give this judgment.
BACKGROUND
For the purposes of this judgment I can set out the background to this case very briefly. The applicant and the first respondent began a relationship in 2011. They wished to have children but for medical reasons the applicant was unable to conceive. A cycle of IVF treatment, funded by the NHS, was unsuccessful and the couple could not afford to pay privately for further IVF treatment.
The applicant and first respondent then considered surrogacy and were delighted when the friend of a family member volunteered to be a surrogate for them.
In 2015 they engaged a fertility clinic to assist them. Once all the necessary formalities had been completed an embryo was created using the applicant's and first respondent's gametes. The second respondent was implanted with the embryo on 29 May 2016.
During the course of the pregnancy the relationship between the applicant and the first respondent deteriorated and finally they separated before A's birth. I do not propose to include in this judgment how or why they separated.
Since A's birth the second respondent has surrendered his care to the applicant. She has no wish to be involved in the upbringing of A and would be content for a parental order to be made in favour of the applicant if that route was in law available to her. She would support A remaining in the care of the applicant and any orders which would terminate her parental responsibility for him or prohibit her from exercising her parental responsibility.
The first respondent has played no role whatsoever in A's life. He has not seen him. As noted above he does not wish to be involved in his child's upbringing. He is, of course, the only biological and legal parent that A has, as matters stand.
The applicant is in the process of issuing an application for a parental order within six months of A's birth. She recognises that the application will be stayed pending a change in the law following on from the President's declaration of incompatibility in Re Z (A Child) (No.2) : see below.
THE LAW
A parental order made pursuant to s.54 of the Human Fertilisation and Embryology Act 2008 ('the 2008 Act') provides for the child to be treated in law as the child of the applicants. The order may be made if the conditions set out in s.54 of the 2008 Act are satisfied.
The act provides that:
For the purposes of this judgment the relevant statutory provisions of s.54 are:
i) s.54(1) which requires the application to be made by two people;
ii) s.54(2) which requires the applicants to be either husband and wife, or civil partners or persons who are living as partners in an enduring family relationship; and
iii) s.54(4)(a) which requires that the child's home must be with the applicants.
In Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73 the President declined to read down the provisions of s.54 of the 2008 Act to permit an application for a parental order by a single applicant.
In Re Z (A Child) (No.2) [2016] EWHC 1191 (Fam) , [2016] 2 FLR 327 , the President made a declaration of incompatibility in respect of s.54 in the following terms at paragraph 17 "sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant form obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple."
The transformative legal effect of a parental order cannot be overstated. The only alternatives are:
i) An adoption order, but, on the facts, it would be inappropriate for the biological mother to become in law the adoptive mother of her own child in order to gain the status of being the child's legal parent; or
ii) Making the child a ward of court, granting and control of the child to the applicant and making such ancillary orders as to minimise the number of occasions the applicant would have to apply to the court: see Re Z (A Child) (No. 2) above and the judgment of the President at paragraph 7. But these collections of orders do not make the applicant the legal parent of the child.
In Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (Fam) the President said at paragraph 54
I respectfully agree.
DISCUSSION
Following the President's declaration of incompatibility in Re Z (A Child) (No. 2) above, the Government is actively considering the terms of a remedial order to address the incompatibility identified in that case: see paragraph 17 above.
The applicant earnestly hopes that that the terms of the remedial order will be such that she will be able to apply for a parental order. This 'transformative' order would enable her to be a legal parent of A.
In the meantime I am satisfied that it is in A's welfare best interests for the court to approve the continuation of the wardship and the grant of care and control in respect of him to the applicant.
In giving this judgment I have well in mind the words of the President in Re Z (A child) (No. 2) where at paragraph 26-28 and 30 he said
Once again, I respectfully agree.