Communicated on 1 March 2021 Published on 22 March 2021

FOURTH SECTION

Application no. 32185/20 H against the United Kingdom lodged on 22 July 2020

STATEMENT OF FACTS

The applicant, H, is a British national, who was born in 2016 and lives in London. She is represented before the Court by B, one of four adults who has parental responsibility for her and who is acting as her litigation friend.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was born pursuant to a surrogacy arrangement. In 2015 A and B, who are same sex partners, entered into a surrogacy arrangement with a married couple, C and D. C subsequently became pregnant using donated eggs and sperm from both A and B. A DNA test has since confirmed that A is the applicant ’ s genetic father.

Before the applicant was born there was a breakdown in relations between A and B, on the one hand, and C and D, on the other. As a consequence , C and D did not initially inform A and B of the applicant ’ s birth. A and B subsequently commenced proceedings in the family courts and on 13 December 2016 a judge ordered that A and B, as well as C and D, should have parental responsibility for the applicant. She also made a child arrangements order declaring that the applicant should live with A and B; that A and B should make all of the day to day decisions in respect of the applicant, as well as decisions concerning her education, medical treatment and “all other parenting decisions”; that the applicant ’ s name should be changed to incorporate the surnames of A and B; and that C and D should have regular contact with her throughout the year. The Court of Appeal subsequently dismissed C and D ’ s appeal against that decision.

Pursuant to the order, the applicant now lives with A and B although she also has an ongoing relationship with C and D and their wider extended family.

According to the applicant ’ s birth certificate C and D are her “mother” and “father”.

Sections 33 and 35 of the Human Fertilisation and Embryology Act 2008 (“HFEA” – see section on domestic law and practice below) provides that in cases of assisted reproduction the woman who carried the child (in this case, C) is to be treated as the child ’ s mother; and if the mother is married, her husband (in this case, D) is to be treated as the father unless it is shown that he did not consent to the procedure. Section 38(1) of HFEA (see section on domestic law and practice below) further provides that where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child. Pursuant to section 54 of HFEA (see section on domestic law and practice below) the intended parent(s) may apply for a parental order so as to become the lawful parent(s) of the child. Once a parental order is made, the birth will be re-registered to record the intended parent(s) as the legal parent(s). A certificate from the Parental Order Register will be issued for the child, which is materially similar to a long-form birth certificate. However, according to section 54 of HFEA the parental order can only be made with the unconditional agreement of the woman who carried the child and the man who is the father by virtue of section 35 or 36 of HFEA (see section on domestic law and practice below).

As C and D did not consent to the making of a parental order, A could not be recognised as the applicant ’ s legal father.

On 1 May 2018 the applicant sent a letter before claim to the Secretary of State for Health and Social Care alleging that her right to respect for her private life under Article 8 of the Convention was being infringed and seeking a concession that sections 35 and 38 of HFEA were incompatible with that Convention Article. The defendant responded, submitting that there had been no breach of her Convention rights as her relationship with A had been recognised in law by the family court through the grant of a child arrangements order.

On 16 October 2018 the applicant, through B, acting as her litigation friend, sought permission to apply for judicial review. In particular, she sought a declaration of incompatibility in respect of sections 35 and 38 of HFEA and a declaration that those sections breached her human rights.

Regarding her own personal circumstances, she submitted that she was denied the social and emotional benefits of having legal recognition of her biological father and her day to day reality. Although A and B had parental responsibility, this lacked the quality of long-term certainty that legal parenthood had and, unlike legal parenthood, it would come to an end when she was eighteen. She further argued that she was precluded from obtaining Brazilian citizenship as of right (A being a Brazilian citizen), and that she could be disadvantaged financially by the operation of inheritance law. As such, the legislation had not struck a fair balance between the competing interests at stake.

The defendant filed two witness statements from the Deputy Director of the Health Ethics branch of the Department of Health and Social Care setting out a detailed history of the evolution of the policy and statutes in the field of assisted procreation.

According to the High Court judge, Mrs Justice Lieven DBE, it was apparent that there had been “very careful consideration of the moral, ethical and legal implications of surrogacy and the balances to be struck in respect of those various considerations”. The overarching concern was to prevent the commodification of surrogacy, and the key policy drivers were identified as follows. First of all , there was the desire to provide certainty for parents, gamete or embryo donors and especially children, and to ensure that gamete donors did not automatically become legal parents. Secondly, there was the need to regulate assisted procreation so that it was not misused. Thirdly, there was the desire to enshrine the principle that while surrogacy agreements were lawful in the United Kingdom, subject to certain restrictions, they were not enforceable.

The High Court judge analysed in detail the case-law of the European Court of Human Rights. In her view, however, surrogacy was an issue upon which there was no European consensus, and one which raised significant moral and ethical issues. Both of these factors militated in favour of a wide margin of appreciation. Although the judge recognised that the margin of appreciation between the supranational Court and the member States was not the same as that between the national courts and the Executive or Legislature, she considered the same factors to be relevant to both and as a result believed she should be “very cautious” before deciding that a provision, which was enacted by Parliament and which was both rational and within the margin of appreciation accorded by the Court, infringed a Convention right. This was particularly so where the statutory scheme had been subject to a detailed process of consultation and consideration; in such cases, bright line rules rather than individual discretionary decisions could be proportionate (the High Court judge referred, in this respect, to Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013 (extracts)).

The judge concluded that sections 35 and 38 of HFEA were not incompatible with the applicant ’ s Article 8 rights. She accepted that the operation of those provisions interfered with her right to respect for her private life, as genetic or biological inheritance was an important facet of any individual ’ s personal identity, but she considered the interference to be relatively limited. In reality the applicant would know and understand her heritage because A and B could explain it to her; there was no evidence of any harm to her from not being a Brazilian citizen; and the suggestion of any impact on her inheritance rights was speculative and in any event could be overcome by way of testamentary provision. The judge observed that the balances struck by the legislature protected the best interests of children. Moreover, the scheme had been carefully considered through two pre ‑ legislative processes which involved a report by the Committee of inquiry into Human Fertilisation and Embryology (named “the Warnock Report” after the chair of the committee – see section on domestic law and practice below), White Papers and two rounds of extensive consultation. The most recent consideration of the law had been in 2008 and the issues raised by the applicant had not changed fundamentally since then. Moreover, the specific issue raised in this case, whether a genetic father could be registered on the birth certificate in place of a surrogate ’ s husband, had been raised by Parliament in 2008 by way of a proposed amendment which was subsequently withdrawn (see section on domestic law and practice below). The judge therefore considered it appropriate to afford Parliament a very wide area of discretionary judgment.

As for the Court ’ s case-law, the judge found there to be “critical distinctions” between the respondent State ’ s statutory scheme and the French scheme which was considered in Mennesson v. France (no. 65192/11, ECHR 2014 (extracts)). What led to the breach of Article 8 in Mennesson was the absolute inability of the children to have their genetic father accorded legal status. In the United Kingdom, section 54 of HFEA provided an effective mechanism to enable the genetic father to establish legal parenthood. The only reason the applicant in the present case could not rely on section 54 was because C and D did not consent, but she had not sought to argue that section 54 was incompatible with the Convention. The judge continued:

“In any event, for reasons that I will expand upon below a requirement for consent does not appear to me to be disproportionate. There is nothing in Mennesson that would suggest that a provision such as s.54 would not provide the ‘ de facto enjoyment of civil status ’ , as referred to in [paragraph 100] of the judgment, which would be sufficient to meet any alleged article 8 breach.

This conclusion is reinforced by the Advisory Opinion which at [paragraph 51] states that the choice of means of recognition is for the signatory State, and at [paragraph 54] states that the requirement is that ‘ an effective mechanism should exist enabling that relationship to recognised ’ . Such an effective mechanism does exist in the HFEA, albeit subject to consent.”

The judge therefore concluded that the interference with the applicant ’ s Article 8 rights was justified.

The applicant applied for permission to appeal. In particular, she argued that the High Court judge, in recognising the need for legal certainty as a justification for the provision, had failed to attach appropriate weight to the fact that the naming of A on her birth certificate would accurately reflect the factual situation for all parties. She further argued that the judge had been wrong both to afford A the limited status of “gamete donor” when he was in fact the intended father, and in her understanding that the objective of not naming a genetic father on the birth certificate was to prevent any tipping of the balance towards a more enforceable position for the intended parents.

On 25 October 2019 the application for permission to appeal was refused as the Court of Appeal considered that an appeal would have no real prospect of success.

In July 1982 a Committee chaired by Dame Mary Warnock was established to examine the social, ethical and legal implications of recent and potential developments in the field of human assisted reproduction. The Committee ’ s report was published in June 1984 and in respect of surrogacy it reached the following conclusions:

“8.17 The question of surrogacy presented us with some of the most difficult problems we encountered. The evidence submitted to us contained a range of strongly held views and this was reflected in our own views. The moral and social objections to surrogacy have weighed heavily with us. In the first place we are all agreed that surrogacy for convenience alone, that is, where a woman is physically capable of bearing a child but does not wish to undergo pregnancy, is totally ethically unacceptable. Even in compelling medical circumstances the danger of exploitation of one human being by another appears to the majority of us far to outweigh the potential benefits, in almost every case. That people should treat others as a means to their own ends, however desirable the consequences, must always be liable to moral objection. Such treatment of one person by another becomes positively exploitative when financial interests are involved. It is therefore with the commercial exploitation of surrogacy that we have been primarily, but by no means exclusively, concerned.

8.18 We have considered whether the criminal law should have any part to play in the control of surrogacy and have concluded that it should. We recognise that there is a serious risk of commercial exploitation of surrogacy and that this would be difficult to prevent without the assistance of the criminal law. We have considered whether a limited, non-profit making surrogacy service, subject to licensing and inspection, could have any useful part to play but the majority agreed that the existence of such a service would in itself encourage the growth of surrogacy. We recommend that legislation be introduced to render criminal the creation or the operation in the United Kingdom of agencies whose purposes include the recruitment of women for surrogate pregnancy or making arrangements for individuals or couples who wish to utilise the services of a carrying mother; such legislation should be wide enough to include both profit and non-profit making organisations. We further recommend that the legislation be sufficiently wide to render criminally liable the actions of professionals and others who knowingly assist in the establishment of a surrogate pregnancy.

8.19 We do not envisage that this legislation would render private persons entering into surrogacy arrangements liable to criminal prosecution, as we are anxious to avoid children being born to mothers subject to the taint of criminality. We nonetheless recognise that there will continue to be privately arranged surrogacy agreements. While we consider that most, if not all, surrogacy arrangements would be legally unenforceable in any of their terms, we feel that the position should be put beyond any possible doubt in law. We recommend that it be provided by statute that all surrogacy agreements are illegal contracts and therefore unenforceable in the courts.

8.20 We are conscious that surrogacy like egg and embryo donation may raise the question as to whether the genetic or the carrying mother is the true mother. Our recommendations in 6.8 and 7.6 cover cases where eggs or embryos have been donated. There remains however the possible case where the egg or embryo has not been donated but has been provided by the commissioning mother or parents with the intention that they should bring up the resultant child. If our recommendation in 8.18 is accepted, such cases are unlikely to occur because of the probability that the practitioner administering the treatment would be committing an offence. However, for the avoidance of doubt, we consider that the legislation proposed in 6.8 and 7.6 should be sufficiently widely drawn to cover any such case. If experience shows that this gives rise to an injustice for children who live with their genetic mother rather than the mother who bore them then in our view the remedy is to make the adoption laws more flexible so as to enable the genetic mother to adopt.”

Section 2 of SAA criminalises the initiation of and participation in the negotiation of surrogacy arrangements by third parties on a commercial basis. Section 3 of SAA further criminalises the publication of advertisements offering to enter into, or facilitate the making of, a surrogacy arrangement.

Pursuant to section 1A of SAA, surrogacy arrangements are not enforceable by or against any party to such an arrangement.

In respect of parenthood in cases involving assisted reproduction, HFEA provides, in so far as is relevant:

“33(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

...

35(1) If—

(a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage with a man, and

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).

...

38(1) Where a person is to be treated as the father of the child by virtue of section 35 or 36, no other person is to be treated as the father of the child.

(2) In England and Wales and Northern Ireland, sections 35 and 36 do not affect any presumption, applying by virtue of the rules of common law, that a child is the legitimate child of the parties to a marriage.”

Section 54 allows for the making of parental orders where the child is born pursuant to a surrogacy arrangements using the gametes of one of the intended parties. It provides as follows:

“(1) On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a) the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,

(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(c) the conditions in subsections (2) to (8) are satisfied.

(2) The applicants must be—

(a) husband and wife,

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order—

(a) the child ’ s home must be with the applicants, and

(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the age of 18.

(6) The court must be satisfied that both—

(a) the woman who carried the child, and

(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child ’ s birth.

(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—

(a) the making of the order,

(b) any agreement required by subsection (6),

(c) the handing over of the child to the applicants, or

(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.”

During the passage of the Bill a Member of Parliament proposed an amendment which would have allowed the intended father to be the legal father at birth. However, the amendment was opposed by the Government. Surrogacy agreements were not enforceable so as not to encourage the removal of babies from their mothers against the mothers ’ wishes. In the Government ’ s view, expressed by way of a Ministerial Statement, the proposed amendment would have undermined that position. If a surrogate chose to keep a child, taking fatherhood away from her partner and giving it to the commissioning father, if he was the genetic parent, would open the way for the commissioning couple to claim custody of the child.

Pursuant to sections 77 to 79 of, and Schedule 1 to, the Adoption and Children Act 2002 and the Human Fertilisation and Embryology (Parental Orders) Regulations 2018, the Registrar General must maintain a Parental Order Register. Every parental order must contain a direction to the Registrar General to make an entry in the Register; and the Registrar General must ensure that there is a traceable link between the Parental Order and the child ’ s original birth certificate. That link is not open to the public for general inspection or search, but a certificate from the Parental Order Register will be issued for the child. This certificate is materially similar to a long-form birth certificate, save that both the intended parents are recorded as “parent”.

In 2019 the Law Commission launched a consultation on how to make surrogacy laws that work for the parents, the surrogate and, most importantly, the child. The consultation ran from 6 June 2019 to 11 October 2019 and it expects to publish a final report with its recommendations for reform of the law, and a draft Bill, in early 2022.

In the introduction to the Consultation Paper the Law Commission noted that the HFEA had been heavily influenced by the Warnock Report, which was published in 1984 and had concluded that all surrogacy arrangements (whether altruistic or commercial) were “liable to moral objection”. As a result, the legislation was unduly protective of the surrogate. The Law Commission continued:

“The numbers of UK children born each year as a result of a surrogacy arrangement are unknown. We do know that 367 parental orders were granted in England and Wales in 2018 (up from 117 in 2011).

...

The number of parental orders granted, however, does not reflect the true number of surrogate-born children each year. That is because, while the intended parents need a parental order to become the legal parents of the child, in practice not every intended parent will apply for an order. Whilst the exact numbers of surrogate births per year is, therefore, uncertain, they certainly represent a tiny fraction of the total number of live births in the UK each year. Yet the number of surrogate births continues to grow, and the impact that the law has on all those affected is substantial.

The two primary pieces of legislation that govern surrogacy across the UK are the Surrogacy Arrangements Act 1985 (which we refer to throughout this Consultation Paper as the “SAA 1985”), and the Human Fertilisation and Embryology Act 2008 (which we refer to throughout this Consultation Paper as the “HFEA 2008”). Although the HFEA 2008 made certain important updates to the law on surrogacy, the central features of the parental order process that are now contained in sections 54 and 54A of the HFEA 2008 continue to derive from section 30 of the much earlier Human Fertilisation and Embryology Act 1990 (which we refer to throughout this Consultation Paper as the “HFEA 1990”).

The key aspects and principles of the current law on surrogacy therefore date from legislation passed nearly 30 years ago. The law on surrogacy is now overdue for re-examination in light of the societal and medical changes that have occurred during this intervening period. As has been recently described:

‘ while the concept of family has been a fluid throughout history and across cultures, the development of reproductive technology over the past decades has seen significant changes to our understanding of family, parenthood, and the creation of life itself. ’

...

Whilst we acknowledge that there is a lack of public attitudinal research in this area, the research that exists suggests that public attitudes to surrogacy also now stand in stark contrast to the prevailing hostile attitudes at the time of the SAA 1985. The available research reflects the fact that the legislation is now out of step with attitudes towards surrogacy. Reflecting this change, the Department of Health and Social Care (the “DHSC”) recently published, for the first time, guidelines on the practice of surrogacy with two publications. One of these documents states clearly that ‘ the Government supports surrogacy as part of the range of assisted conception options ’ .”

On the issue of legal parenthood, the Law Commission considered that the current law could be said to give insufficient weight to what the parties in a surrogacy agreement – both surrogate and intended parents – actually wanted to happen, assuming that they had made the choice in an informed way and of their own free will. Its key provisional proposal was for the creation of a new surrogacy pathway which, when followed, would mean that the intended parents of a surrogate-born child would be the child ’ s legal parents from birth, unless the surrogate objected. According to the Law Commission, “the law should reflect what the parties intend in terms of legal parenthood” and in their view “this will best promote the welfare of the child” by “removing the current split between legal and social/psychological parenthood that currently persists until the time that a parental order is made”.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the operation of the Human Fertilisation and Embryology Act 2008 breached her right to respect for her private life.

QUESTIONS TO THE PARTIES

1. Given that the applicant, in the judicial review proceedings, challenged only sections 35 and 38 of the Human Fertilisation and Embryology Act 2008, to what extent could she be said to have exhausted domestic remedies, within the meaning of Article 35 § 1 of the Convention, in relation to her Article 8 complaint?

2. Has there been a breach of the applicant ’ s right to respect for her private life by virtue of the fact that A cannot be legally recognised as her father?