Ineligibility of Single Applicants

Background

The case concerned a child, Z, born in 2014 in Minnesota, USA, via a surrogacy arrangement. The child was conceived using the applicant father’s sperm and an anonymous donor egg. Although a US court had issued a judgment establishing the father’s sole parentage and relieving the surrogate of all legal rights, United Kingdom law still recognized the surrogate as the legal mother. Upon returning to the UK, the father sought a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) to secure his legal status.

Contentions of the Parties

The central legal obstacle was that Section 54(1) of the HFEA 2008 explicitly stated that a parental order could only be made on an application by “two people”.

• The Applicant: The father argued that the “two people” requirement was a discriminatory interference with his and the child’s rights to private and family life under Articles 8 and 14 of the European Convention on Human Rights. He contended that the court should use its powers under the Human Rights Act 1998 to “read down” the statute—interpreting “two people” to include a single person—to make it convention-compliant. He pointed out that single people are eligible to adopt children, and there was no logical reason to treat surrogacy differently.
• The Child’s Representative: Representing Z, CAFCASS Legal supported the father’s position, encouraging the court to find a way to grant the order in the child’s best interests.

The Judge’s Decision

Sir James Munby, President of the Family Division, dismissed the application. He ruled that it was not open to the court to make a parental order for a single applicant and that Section 54(1) could not be “read down” to include individuals.

Reasoning of the Judgment

The court’s reasoning emphasized the limits of judicial interpretation versus the role of Parliament:

• A “Fundamental Feature” of Law: The judge held that the principle that only a couple could apply for a parental order was a “clear and prominent feature” and a “cardinal principle” of the legislation since 1990.
• Against the “Grain” of Legislation: While courts had previously “read down” other parts of Section 54 (such as the six-month time limit), those were considered procedural. In contrast, the requirement for “two people” went to the “very core and essence” of the statute. To change “two people” to “one person” would be an act of legislation, not interpretation, which the court does not have the power to do.
• Deliberate Policy Choice: The judge noted that Parliament had specifically debated and rejected amendments to allow single applicants in 2008. Parliament’s view was that surrogacy, involving the pre-conception agreement to hand over a child, was a responsibility “better handled by a couple”.

Conclusion

In Re Z, the court affirmed that it cannot override clear statutory language that represents a fundamental policy choice by Parliament. The ruling confirmed that, at the time, single parents through surrogacy were legally barred from obtaining parental orders in the UK, leaving them with adoption as the only available route to secure legal parenthood.