Court holds biological father’s inability to be named on surrogate child’s birth certificate to be a legitimate interference with his private life


Re: R (H) (by her litigation friend B) v Secretary of State for Health and Social Care [2019] EWHC 2095 (Admin)

This case concerns whether the inability of A (the claimant’s genetic father) to be named on the claimant’s birth certificate is a breach of the claimant’s ECHR, art 8 and 14 rights. The claimant applies for a declaration of incompatibility under Human Rights Act 1998, s 4 in respect of Human Fertilisation and Embryology Act (HFEA) 2008, s 35 and s 38 and for a declaration that those sections breach the claimant’s human rights.

A and B entered into a surrogacy arrangement with C and D, a married couple. A is the biological father and C is the biological mother. During the course of C’s pregnancy, there was a breakdown in relations between the parties.

C and D registered themselves on H’s birth certificate, however by an Order made on 13 December 2016, A and B, as well as C and D, were given parental responsibility for the claimant. The child currently resides with A and B but has regular contact throughout the year with C and D.

Held: There is no incompatibility and consequentially no remedy. It is accepted that H’s private life is interfered with by the operation of s 35 and s 38, but not her family life. H lives with A and B, and they have day to day responsibility for her life. Her family life with them is fully protected by the terms of the Child Arrangements Order, and the impugned provisions have no real impact on her family life.

This interference, however meets a legitimate aim, and is necessary. The regulation of surrogacy is necessary for three reasons:

  1. in order to provide legal certainty so that the child, and anyone else, can know who that child’s legal parents are;
  2. to meet the objective that gamete donors should not be legal parents;
  3. to ensure that surrogacy arrangements are not enforceable in domestic law.

Furthermore, the interference is relatively limited as A and B can explain H’s genetic heritage, and they have a day to day parental responsibility for her.

Sarah Hannett and Nathan Roberts were involved in this case.