Once again, the boundary between rigid statutory text and human reality has been redrawn by the English family courts, offering a profound lifeline to those grieving families who are navigating the minefield of international surrogacy.
Background:
This case concerns an application for a parental order in respect of Y and Z, two-year-old children born through a surrogacy arrangement in the Ukraine. The applicants, A and B, were a married couple and British citizens who had struggled with secondary infertility after the birth of their first child through in vitro fertilisation (IVF). They had registered with a Ukrainian surrogacy agency in 2021, created embryos using their own gametes in the UK, and entered into a surrogacy agreement with G, a Ukrainian national and gestational surrogate, in 2023. Tragically, the father B died in late 2023, shortly before Y and Z were born in early 2024. Parent A travelled to Ukraine, took the children into her care, and returned to the family home in the UK. She initially filed a sole application for a parental order in June 2024, but, upon receiving specialist pro bono legal advice, sought to amend the application to include B.
The central legal issue was whether the Family Court could read down the provisions of Section 54 of the Human Fertilisation and Embryology Act (HFEA) 2008, which ordinarily require both intended parents to be alive and to jointly apply, to permit the application to proceed in the name of both A and the deceased B.
Decision:
The High Court overcame this statutory impasse by utilising Section 3 of the Human Rights Act (HRA) 1998, which imposes an obligatory duty on courts to interpret primary legislation in a way that is compatible with the principles of the European Convention on Human Rights (ECHR). The Court relied on Marckx v Belgium, which dictates that human rights must be practical and effective rather than theoretical and illusory. Under Article 8 of the ECHR, which protects the right to a private life, a person’s identity as a human being inherently comprises the legal recognition of the parent-child relationship. This especially holds true in relation to biological parentage, as emphasised in Mennesson v France.
The Judge accepted that making a sole parental order naming only A would extinguish B’s existing legal parenthood by operation of Section 67 of the Adoption and Children Act (ACA) 2002, thereby failing to respect the children’s identity rights and discriminating against them on the grounds of their birth through surrogacy. Mrs. Justice Theis concluded that the reasoning in Re X applied with equal force, permitting the amendment of the application, and was satisfied that all Section 54 criteria had been met. The surrogate G consented to the order, and the parental order reporter supported the making of the order. The Court granted a parental order in favour of both A and B, holding that only such an order could provide Y and Z with lifelong legal recognition of their reality as the children of both parents.
Implications:
This landmark ruling carries far-reaching implications for anyone considering undertaking or currently navigating a surrogacy journey, offering peace of mind in the face of life’s most unpredictable tragedy.
First and foremost, the decision firmly establishes that the English courts will prioritise the true “lived reality” and psychological identity of a child over rigid, black-letter legal loopholes. For intended parents, this means that any initial, joint intention to form a family is treated as a foundational legal reality, one that the law will strive to protect, even if misfortune strikes during the process.
Second, the judgement clarifies why alternative legal routes, such as single-parent adoption or standard custody orders, are fundamentally flawed options for surrogacy families. Opting for single-parent adoption creates an artificial “legal fiction”, one that forces a surviving parent to adopt their own genetic children, while simultaneously erasing the deceased partner from the official birth record entirely. This recent ruling ensures you do not have to settle for an administrative compromise that compromises your family’s identity.
Third, the judgement highlights the absolute necessity of robust, comprehensive surrogacy contracts. The Court paid close attention to the fact that the couple’s international agreement explicitly detailed what should happen if a parent passed away. Having clear, written evidence of mutual intent from the outset is your strongest shield if you ever need to ask a court to interpret the law flexibly.
Ultimately, this case provides immense comfort to prospective clients by proving that the law is neither inhumane nor blind to grief. The ruling secures your family’s emotional and legal heritage, ensuring that a child’s right to know and be legally linked to both of their parents remains protected.
Source:EWFC | 28-06-2026
