Alan Brown, University of Strathclyde
 Consider the approach taken by the High Court towards
the conditions required for the granting of ‘parental
orders’ under s.54 Human Fertilisation and Embryology
Act 2008.
Re Z (Surrogate Father:
Parental Order) [2015] 1 WLR 4993 and Re X (Parental
Order: Time Limit) [2015] 1 FLR 349.
 Focusing on the judgments in

Exploring the reasoning for the contrasting approaches
taken to the statutory language of s.54 (1) and (3).
 s.54 (3) provides one of these conditions: ‘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.’
 The consistent judicial position was that this amounted to a
mandatory requirement, which could not be extended.
Re X (Children) (Parental Order: Foreign Surrogacy)
[2009] 1 FLR 733, J v G (Parental Orders) [2014] 1 FLR 297, JP
v LP and Others [2015] 1 FLR 307 and Re WT (A Child) [2015]
 See e.g.
1 FLR 960.
 The judgment observed that strictly imposing the six month
time limit would not be a ‘sensible’ outcome and Parliament
would not have intended as such.
 Therefore, the President granted the parental orders in spite
of the child being over 2 years old at the time of the hearing.
 It appears to be significant that the judgment could not
determine any specific Parliamentary intention behind the
time limit in s.54 (3).


‘Section 54 goes to the most fundamental aspects of
status and, transcending even status, to the very
identity of the child as a human being: who he is and
who his parents are. It is central to his being, whether
as an individual or as a member of his family.’ (Para 54)
The President went on to state, ‘I intend to lay down no
principle beyond that which appears from the
authorities.’ (Para 65)
 However,
this approach has been followed in all
subsequent cases, see e.g. AB v CT (Parental Order:
Consent of Surrogate Mother) [2015] EWFC 12, A v X
[2015] EWHC 2080 (Fam).
 Most strikingly, in
Re A (A Child) [2015] Fam Law 1052,
parental orders were granted even though the children
were 8 years 3 months and 5 years 8 months old at the
time of the court hearing.
 s.54 (1) refers to ‘an application made by two
people’.
 It seems clear that parental orders are not available
to single applicants under the terms of the
legislation.
 See e.g.
B v C (Surrogacy: Adoption) [2015] 1 FLR
1392: ‘A single person is therefore unable to apply
for a parental order.’ (Theis J, Para 20)
 However, in
this decision Sir James Munby P was not
persuaded that he could depart from the statutory language:
‘[t]he principle that only two people – a couple – can apply for
a parental order has been a clear and prominent feature of
the legislation throughout.’ (Para 36)
 The judgment identifies the parliamentary intention behind
this provision: ‘Surrogacy, however, involves agreeing to hand
over a child even before conception. The Government are still
of the view that the magnitude of that means that it is best
dealt with by a couple.’ (Dawn Primarolo, Hansard, 12th June
2008, Col 249)


The judgment goes on to observe: ‘the contrast in this
respect…between adoption orders and parental orders,
which is a fundamental difference of obvious significance, is
both very striking and, in my judgment, very telling. Surely, it
betokens a very clear difference of policy which Parliament,
for whatever reasons, thought it appropriate to draw both in
1990 and again in 2008.’ (Para 36)
Subsequently in Re Z (No 2) [2016] EWHC 1191 (Fam) the
President granted the applicant a declaration of
incompatibility in regards to the requirement for two
applicants in s.54 (1).
 Some of the considerations given significance in regards
to s.54 (3) would prima facie appear to apply to s.54 (1)
as well.
 As mentioned above, in
Re X, it is stated that s.54
‘transcends status’ and refers to ‘the very identity of the
child as a human being’. (Para 54)
 The President states that: ‘Adoption is not an attractive
solution given the commissioning father's existing
biological relationship with X’ (Para 7) is as true for the
factual circumstances of Re Z as Re X.
 Furthermore in
Re A, Russell J observed that, ‘in terms
of their identity only parental orders will fully recognise
the children's identity as the Applicants' natural
children, rather than giving them the wholly artificial
and, in their case, inappropriate status of adopted
children.’ (Para 61)
 Why then are these considerations not given the same
significance in the judgment in Re Z?


The simplest explanation is that the distinction between the
clearly expressed Parliamentary language regarding single
applicants and the lack of such ascertainable intention
regarding the time limit justifies the difference in approach.
However, I think it is arguable that this does not hold up to
scrutiny, in that the lack of clearly expressed intention for the
time limit does not necessarily suggest that there was no
reason for the limit; indeed, it may equally suggest that
Parliament thought the provision clear and uncontroversial.

Moreover, I would tentatively suggest that this distinction is
also influenced by the traditional, two-parent family being
granted significance in the legislative regime, which is
reflected in the Parliamentary language and in both
judgments.

In the time limit cases, the ‘purposive’ or ‘liberal’
interpretation of the statutory rule grants parental orders to
‘deserving’ two-parent families.

Whereas in Re Z maintaining the strict rule (‘two applicants’)
does not extend parental orders outside of the nuclear, twoparent family.
 The trend in cases considering the conditions for ‘parental
orders’ under s.54 HFEA 2008 has been to utilise ‘liberal’ and
‘purposive’ statutory interpretation, which allows for the
welfare of the child to be promoted through the granting of
parental orders.
 However, the judgment in
Re Z (Surrogate Father: Parental
Order) [2015] 1 WLR 4993 adopts a significant more
conservative approach and does not depart from the clear
statutory language.
 It is my suggestion that this can be partially understood as
reflecting the promotion of the traditional, nuclear family
within the overarching framework for cases of Surrogacy.