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(on the application of H) v Secretary of State for

Health and Social Care

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© 2019 Thomson Reuters South Asia Private Limited

12/12/2019 Delivery | Westlaw India

R. (on the application of H) v Secretary of State for Health and Social Care

Queen's Bench Division (Administrative Court)

30 July 2019

Case Analysis

Where Reported [2019] EWHC 2095 (Admin); [2019] 7 WLUK 840; Official Transcript;

Case Digest Subject: Family law Other related subjects: Human rights

Keywords: Birth certificates; Birth parents; Declarations of incompatibility;

Discrimination; Married women; Parental orders; Right to respect for private

and family life; Surrogacy

Summary: The Human Fertilisation and Embryology Act 2008 s.35 , which provided that

where a child's birth mother was married to a man who was not the genetic father, the

husband was to be treated as the father unless he had not consented to the pregnancy,

and s.38 , which provided that no other person was to be treated as the father in those

circumstances, did not breach the ECHR art.8 and art.14 rights of a child born through a

surrogacy arrangement.

Abstract: A child sought a declaration that the inability of her genetic father to be named

on her birth certificate, by reason of the Human Fertilisation and Embryology Act 2008 s.35

and s.38 , breached her rights under ECHR art.8 and art.14 .

The child had been born through a surrogacy arrangement. The genetic mother was an egg

donor. The genetic father's same-sex partner was the child's litigation friend in the instant
proceedings. The birth mother was married to a man. Relations between the genetic father

and the birth mother broke down during the pregnancy. The birth mother and her husband

were named on the child's birth certificate as mother and father. A court later ordered that

the genetic father and his partner should have parental responsibility for the child alongside

the birth mother and her husband, and ordered that the child should live with the genetic

father and his partner. Section 35 provided that where a birth mother was married to a man

who was not the genetic father, the husband was to be treated as the father unless he had

not consented to the pregnancy. Section 38 provided that no other person was to be

treated as the father in those circumstances.

Held: Judgment for defendants.

Compatibility of s.35 and s.38 with child's art.8 rights - The sections were not

incompatible with the child's rights. Any legal scheme concerning surrogacy had to draw

complex balances to protect the children concerned and to take into account the wider

ethical dimensions. At various points, the scheme would necessarily give precedence to

one policy priority over another. There was a wide divergence of approach among Council

of Europe states . The balance struck in Mennesson v France (65192/11 unreported was

between giving states a margin of appreciation and ensuring that the children's rights were

appropriately protected, Mennesson applied. The UK legislative scheme had been

extremely carefully considered. There had been full consideration of the law in 2008, and

the issues raised had not fundamentally changed since then. Further, the specific issue of

whether a genetic father should be named on a birth certificate in place of the surrogate's

husband had been raised in Parliament during the passage of the 2008 Act and had

ultimately been withdrawn. It was therefore appropriate to give a wide discretion to

Parliament in the setting of the statutory provisions, R. (on the application of Nicklinson) v

Ministry of Justice [2014] UKSC 38, [2015] A.C. 657, [2014] 6 WLUK 769 followed. A

breach of art.8 had been found in Mennesson because of the absolute inability of children

in France to have their genetic father accorded legal status. In the UK, genetic fathers

could establish legal parenthood through the parental order provisions in s.54 . The child

could not rely on s.54 because the surrogate parents did not consent, but she had not

argued that s.54 and the consent requirement were incompatible with her rights (see paras

75-80 of judgment).
Compatibility with art.8: justification for interference with rights - Section 35 and s.38

did not interfere with the child's family life: there were no practical consequences, as the

child lived with the genetic father and his partner and they had day-to-day responsibility for

12/12/2019 Delivery | Westlaw India Page 2

her life. However, a statutory scheme which provided that the surrogate's husband could be

recorded on the birth certificate rather than the genetic father, particularly where the genetic

father strongly wished to be named, interfered with the child's private life. Genetic or

biological inheritance was an important facet of an individual's identity, and parental

responsibility orders did not accord the holder the status of legal parent. However, the

regulation of surrogacy was a legitimate aim and was necessary. The scheme was justified

by the need for legal certainty so that the child had at least one and no more than two

parents. It would be possible to devise a scheme with legal certainty that allowed the

genetic father to be the legal parent, but the existence of another way to meet the

legitimate aim did not mean the existing scheme was incompatible, Gallagher's Application

for Judicial Review, Re [2019 ] UKSC 3, [ 2019 ] 2 W.L.R. 509, [ 2019 ] 1 WLUK 261

followed. A further justification was ensuring that gamete donors should not be forced to

become legal parents. Further, there was an overarching objective of ensuring that

surrogacy arrangements were not enforceable. If the genetic father could require himself to

be named on the birth certificate in place of the husband, that would tip the balance

towards a more enforceable position. It was open to Parliament to create a scheme which

imposed such bright line rules, Gallagher followed (paras 83-88).

Compatibility with art.14 - There was no breach of art.14. Although the facts fell within

art.14, the comparators suggested by the child were not analogous. A child born of a

sexual encounter was not analogous, M v F (Legal Paternity) [2013] EWHC 1901 (Fam),

[2014] 1 F.L.R. 352, [2013] 7 WLUK 161 applied. In cases of artificial insemination or or

assisted reproduction without the husband's consent, the husband would not be named on

the birth certificate, but those situations were not analogous. The fact that the husband had

consented to the treatment was fundamental to the ascription of legal parenthood. If he had

not consented, the balances struck in the scheme would be different (paras 90-91).

Judge: Lieven J

Counsel: For the claimant: Richard Alomo (Direct Access), Dr Chelvan. For
the defendant: Sarah Hannett, Nathan Roberts. For the interested parties:

Hannah Markham QC.

Solicitor: For the defendant: Government Legal Department. For the

interested parties: Freemans Solicitors.

Significant Cases Cited Gallagher's Application for Judicial Review, Re

[2019] UKSC 3; [ 2019] 2 W.L.R. 509; [ 2019] 3 All E.R. 823; [ 2019] N.I.

123; [ 2019] 1 WLUK 261; [ 2019] H.R.L.R. 6; Times, February 25, 2019;

SC; 30 January 2019

R. (on the application of Nicklinson) v Ministry of Justice

[2014] UKSC 38; [2015] A.C. 657; [2014] 3 W.L.R. 200; [2014] 3 All E.R.

843; [2014] 6 WLUK 769; [2014] 3 F.C.R. 1; [2014] H.R.L.R. 17; 36

B.H.R.C. 465; (2014) 139 B.M.L.R. 1; Times, June 26, 2014; SC; 25 June

2014

M v F (Legal Paternity)

[2013] EWHC 1901 (Fam); [2013] 7 WLUK 161; [2014] 1 F.L.R. 352; [2014]

1 F.C.R. 456; [2013] Fam. Law 1386; FAM; 05 July 2013

All Cases Cited Gallagher's Application for Judicial Review, Re

[2019] UKSC 3; [ 2019] 2 W.L.R. 509; [ 2019] 3 All E.R. 823; [ 2019] N.I.

123; [ 2019] 1 WLUK 261; [ 2019] H.R.L.R. 6; Times, February 25, 2019;

SC; 30 January 2019

Craig v Advocate General for Scotland

[2018] CSOH 117; 2019 S.C. 230; 2019 S.L.T. 1; [2018] 12 WLUK 209;

2018 G.W.D. 40-484; OH; 12 December 2018

R. (on the application of K (A Child)) v Secretary of State for the Home

Department

[2018] EWHC 1834 (Admin); [2018] 1 W.L.R. 6000; [2018] 7 WLUK 402;

[2018] A.C.D. 100; QBD (Admin); 18 July 2018

R. (on the application of Tigere) v Secretary of State for Business,

Innovation and Skills

12/12/2019 Delivery | Westlaw India Page 3

[2015] UKSC 57; [2015] 1 W.L.R. 3820; [2016] 1 All E.R. 191; [2015] 7
WLUK 921; [2015] H.R.L.R. 19; 40 B.H.R.C. 19; [2015] E.L.R. 455; SC; 29

July 2015

Coventry v Lawrence

[2015] UKSC 50; [2015] 1 W.L.R. 3485; [2016] 2 All E.R. 97; [2015] 7

WLUK 727; [2015] 4 Costs L.O. 507; [2015] H.R.L.R. 16; 40 B.H.R.C. 734;

Times, August 17, 2015; SC; 22 July 2015

R. (on the application of Nicklinson) v Ministry of Justice

[2014] UKSC 38; [2015] A.C. 657; [2014] 3 W.L.R. 200; [2014] 3 All E.R.

843; [2014] 6 WLUK 769; [2014] 3 F.C.R. 1; [2014] H.R.L.R. 17; 36

B.H.R.C. 465; (2014) 139 B.M.L.R. 1; Times, June 26, 2014; SC; 25 June

2014

M v F (Legal Paternity)

[2013] EWHC 1901 (Fam); [2013] 7 WLUK 161; [2014] 1 F.L.R. 352; [2014]

1 F.C.R. 456; [2013] Fam. Law 1386; FAM; 05 July 2013

E (Assisted Reproduction: Parent), Re

[2013] EWHC 1418 (Fam); [2013] 5 WLUK 682; [2013] 2 F.L.R. 1357;

[2013] 3 F.C.R. 532; [2013] Fam. Law 962; (2013) 163(7563) N.L.J. 19;

FAM; 24 May 2013

Animal Defenders International v United Kingdom (48876/08)

[2013] 4 WLUK 468; [2013] E.M.L.R. 28; (2013) 57 E.H.R.R. 21; 34

B.H.R.C. 137; Times, April 25, 2013; (2013) 163(7564) N.L.J. 20; ECHR

(Grand Chamber); 22 April 2013

L (A Child) (Parental Order: Foreign Surrogacy), Re

[2010] EWHC 3146 (Fam); [2011] Fam. 106; [2011] 2 W.L.R. 1006; [2010]

12 WLUK 229; [2011] 1 F.L.R. 1423; [2011] Fam. Law 241; FAM; 08

December 2010

P (A Child) (Adoption: Unmarried Couples), Re

[2008] UKHL 38; [2009] 1 A.C. 173; [2008] 3 W.L.R. 76; [2008] N.I. 310;

[2008] 6 WLUK 424; [2008] 2 F.L.R. 1084; [2008] 2 F.C.R. 366; [2008]

H.R.L.R. 37; [2008] U.K.H.R.R. 1181; 24 B.H.R.C. 650; Times, June 23,

2008; [2008] Fam. Law 977; (2008) 105(25) L.S.G. 25; HL (NI); 18 June
2008

Toussaint v Attorney General of St Vincent and the Grenadines

[2007] UKPC 48; [2007] 1 W.L.R. 2825; [2008] 1 All E.R. 1; [2007] 7 WLUK

443; 22 B.H.R.C. 790; PC (StV); 16 July 2007

Ghaidan v Godin-Mendoza

[2004] UKHL 30; [2004] 2 A.C. 557; [2004] 3 W.L.R. 113; [2004] 3 All E.R.

411; [2004] 6 WLUK 427; [2004] 2 F.L.R. 600; [2004] 2 F.C.R. 481; [2004]

H.R.L.R. 31; [2004] U.K.H.R.R. 827; 16 B.H.R.C. 671; [2004] H.L.R. 46;

[2005] 1 P. & C.R. 18; [2005] L. & T.R. 3; [2004] 2 E.G.L.R. 132; Times,

June 24, 2004; [2004] Fam. Law 641; [2004] 27 E.G. 128 (C.S.); (2004)

101(27) L.S.G. 30; (2004) 154 N.L.J. 1013; (2004) 148 S.J.L.B. 792; [2004]

N.P.C. 100; [2004] 2 P. & C.R. DG17; HL; 21 June 2004

Wilson v First County Trust Ltd

[2003] UKHL 40; [2004] 1 A.C. 816; [2003] 3 W.L.R. 568; [2003] 4 All E.R.

97; [2003] 2 All E.R. (Comm) 491; [2003] 7 WLUK 303; [2003] H.R.L.R. 33;

[2003] U.K.H.R.R. 1085; Times, July 11, 2003; Independent, November 3,

2003; (2003) 100(35) L.S.G. 39; (2003) 147 S.J.L.B. 872; HL; 10 July 2003

R. (on the application of Carson) v Secretary of State for Work and

Pensions

[2002] EWHC 978 (Admin); [2002] 3 All E.R. 994; [2002] 5 WLUK 653;

12/12/2019 Delivery | Westlaw India Page 4

Times, May 24, 2002; Daily Telegraph, May 30, 2002; (2002) 99(26) L.S.G.

39; QBD (Admin); 22 May 2002

Wandsworth LBC v Michalak

[2002] EWCA Civ 271; [2003] 1 W.L.R. 617; [2002] 4 All E.R. 1136; [2002] 3

WLUK 126; [2003] 1 F.C.R. 713; [2002] H.L.R. 39; [2002] N.P.C. 34; CA

(Civ Div); 06 March 2002

Prebble v Television New Zealand Ltd

[1995] 1 A.C. 321; [1994] 3 W.L.R. 970; [1994] 3 All E.R. 407; [1994] 6

WLUK 319; Times, July 13, 1994; (1994) 91(39) L.S.G. 38; (1994) 144

N.L.J. 1131; (1994) 138 S.J.L.B. 175; PC (NZ); 27 June 1994

Pepper (Inspector of Taxes) v Hart

[1993] A.C. 593; [1992] 3 W.L.R. 1032; [1993] 1 All E.R. 42; [1992] S.T.C.

898; [1992] 11 WLUK 389; [1993] I.C.R. 291; [1993] I.R.L.R. 33; [1993]

R.V.R. 127; Times, November 30, 1992; Independent, November 26, 1992;

(1993) 143 N.L.J. 17; [1992] N.P.C. 154; HL; 26 November 1992

British Railways Board v Pickin

[1974] A.C. 765; [1974] 2 W.L.R. 208; [1974] 1 All E.R. 609; [1974] 1 WLUK

735; (1974) 118 S.J. 134; HL; 30 January 1974

Bradlaugh v Gossett

(1884) 12 Q.B.D. 271; [1884] 2 WLUK 27; QBD; 09 February 1884

Stockdale v Hansard

112 E.R. 1112; (1839) 9 Ad. & El. 1; (1839) 3 St. Tr. (N.S.) 723; [1839] 1

WLUK 302; QB; 01 January 1839

Burdett v Abbot

104 E.R. 501; (1811) 14 East 1; [1811] 1 WLUK 1; KB; 01 January 1811

Significant Legislation

Cited

ECHR art.8

ECHR art.14

Human Fertilisation and Embryology Act 2008 (c.22) s.35

Human Fertilisation and Embryology Act 2008 (c.22) s.38

Human Fertilisation and Embryology Act 2008 (c.22) s.54

Legislation Cited Adoption and Children Act 2002 (c.38) s.77

Adoption and Children Act 2002 (c.38) Sch.1

Children Act 1989 (c.41)

Children Act 1989 (c.41) s.3

Children Act 1989 (c.41) s.10(4)(a)

Children Act 1989 (c.41) Sch.1 para.4

Children Act 1989 (c.41) Sch.1 para.10

ECHR

ECHR art.8
ECHR art.14

Human Fertilisation and Embryology (Parental Orders) Regulations 2018

(SI 2018/1412)

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Human Fertilisation and Embryology (Parental Orders) Regulations 2018

(SI 2018/1412) Sch.1 para.2

Human Fertilisation and Embryology Act 1990 (c.37)

Human Fertilisation and Embryology Act 2008 (c.22) s.30

Human Fertilisation and Embryology Act 2008 (c.22) s.33(1)

Human Fertilisation and Embryology Act 2008 (c.22) s.35

Human Fertilisation and Embryology Act 2008 (c.22) s.37

Human Fertilisation and Embryology Act 2008 (c.22) s.38

Human Fertilisation and Embryology Act 2008 (c.22) s.38(1)

Human Fertilisation and Embryology Act 2008 (c.22) s.38(2)

Human Fertilisation and Embryology Act 2008 (c.22) s.42

Human Fertilisation and Embryology Act 2008 (c.22) s.48(5)

Human Fertilisation and Embryology Act 2008 (c.22) s.54

Human Fertilisation and Embryology Act 2008 (c.22) Sch.6

Human Rights Act 1998 (c.42) s.4

Surrogacy Arrangements Act 1985 (c.49)

Surrogacy Arrangements Act 1985 (c.49) s.1

Surrogacy Arrangements Act 1985 (c.49) s.1A

Surrogacy Arrangements Act 1985 (c.49) s.2

Surrogacy Arrangements Act 1985 (c.49) s.3

© 2019 Thomson Reuters

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