You would be forgiven for thinking that what follows might be the synopsis for the third instalment of the 90s film series starring Ted Danson and Tom Selleck. Alas no, but please keep reading. This story is a real life one involving a surrogacy arrangement and a now six year child who,for very different reasons to the little girl in the film series, has three men involved in her care and upbringing. Sadly, this is not a happy tale of a modern blended family. Instead, this child became the subject of years of litigation regarding her care and parentage, culminating in an application to the European Court of Human Rights which was decided just last month.

The background to the surrogacy case- Jennings v Human Fertilisation & Embryology Authority (HFEA)

The child in question was born in the UK in 2016 as a result of a surrogacy arrangement. She was conceived using an anonymous donor egg and the sperm of Mr A, who planned to raise the child together with his same-sex partner Mr B. Their surrogate, Mrs C, was married so Mr A and Mr B entered into a surrogacy agreement with Mrs C and her husband, Mr C. Mrs C then became pregnant. Unfortunately, the relationship between the two couples began to deteriorate and had broken down entirely by the time of the child's birth. Mrs C did not initially inform Mr A and Mr B about the baby's arrival and, not surprisingly, court proceedings ensued.

Care arrangements and surname

In the beginning, the dispute focussed on the care arrangements for the child. In late 2016, the court decided that the child should live with Mr A and Mr B and have regular contact with Mr and Mrs C. While all four parents were awarded parental rights and responsibilities for the child, the court decided that Mr A and Mr B should make the day to day parenting decisions, including with regard to her health and education. The court also decided that the child's surname should be changed to include Mr A and Mr B's surnames. However, there remained an issue over the child's birth certificate and in particular who should be named as her legal father.

Surrogacy law in the UK

In the UK, surrogacy arrangements are governed by the Human Fertilisation and Embryology Act 2008 which sets out clear rules about the legal parentage of a child born as a result of a surrogacy arrangement. Where a child is born to a surrogate mother, the child's birth must be registered showing the surrogate as the child's legal mother. If the surrogate is married (or civilly partnered), the surrogate's husband (or civil partner) will automatically be registered as the child's father. In order for the intended parents to become the legal parents of the child, they must apply to the court for a parental order which transfers legal parentage of the child from the surrogate to the intended parents. That application must be made within six months of the child's birth. However, a parental order cannot be granted without the consent of the surrogate and her husband.

Breaking down of the surrogacy agreement

In this case the child's birth was registered with Mrs C as her mother and Mr C was automatically registered as her father. Although the original agreement had been that Mr A and Mr B would apply for a parental order, after the surrogacy agreement broke down Mr and Mrs C refused to give their consent. Accordingly, the child's birth certificate continued to show Mr and Mrs C as the child's legal parents. A case was then brought on behalf of the child, seeking to have Mr A substituted for Mr C as the child's legal father. The case was appealed to the European Court of Human Rights.

A breach of human rights?

It was argued that the HFEA, and in particular the requirement to name the surrogate's husband as the child's legal father, breached the child's human right to respect for her private life – specifically her right to her identity and to have an accurate birth record. The court was asked to uphold that argument, and to allow the child's birth certificate to be amended to show Mr A – the child's biological father, with whom she principally resided – as her legal father. Otherwise, the child would spend her life with a birth certificate which did not reflect who her actual father was. However, the European Court refused to interfere with the application of the HFEA. Accordingly, Mr and Mrs C remain the child's legal parents.

A need for surrogacy reform?

The Law Commissions of both Scotland and England agree that the HFEA is in need of reform, to ensure that it properly supports all those involved in surrogacy arrangements and is fit to meet the needs of modern family life. One of the areas expected to be reviewed are the rules relating to the transition of parentage from surrogate to intended parents. The case of this little girl and her parents highlights why reform of the HFEA may be necessary. However, this is a complex and emotive area of law and legislative reform will likely take some time.

The case also reinforces how complicated surrogacy arrangements can be, and the need for all parties involved to be fully advised and to understand the legal implications. If you are considering surrogacy as a path to parenthood, obtaining expert advice before embarking on that process is key.


Zoe Wray