AY & Anor v ZX [2023] EWFC 39 is a recent judgment of Mr Justice Macdonald that considers whether the court could make a parental order under Section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA) in circumstances where the insemination leading to the birth of a child via surrogacy took place through a private arrangement rather than in a licensed clinic.

The court determined that the HFEA did not prevent the court from making such an order.

Background

The application for parental orders was made by AY and BY in respect of two children CY and DY, born in October 2021. The surrogate mother who gave birth to the children is ZX, the respondent in the application.

The parties agreed that ZX would act as a surrogate, and they agreed to attempt home insemination. ZX became pregnant and gave birth to CY and DY. The application was made in May 2022 and was first considered by Magistrates who were concerned that the court did not have jurisdiction to make parental orders under the HFEA, as the insemination did not take place through a licensed clinic. The matter was reallocated to Mr Justice Macdonald for further consideration. All parties agreed that the court has jurisdiction to make the parental orders, and this was further supported by the Parental Order Reporter.

Decision

Mr Justice Macdonald considered the provisions of Section 54 of the HFEA which relates to granting parental orders where there are two applicants. The provisions set out the relevant criteria that has to be met in order for the court to be able to make a parental order. Section 54(1)(a) requires the child to be carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination. The court determined that there was nothing within this provision that indicates that artificial insemination had to be undertaken through a licensed clinic or that private surrogacy arrangements were excluded from the Act.The court further considered the government guidance for surrogates and under the heading ‘Straight Surrogacy’, self-insemination at home is a recognised first step on the surrogacy pathway. It was noted that the pathway included making an application for a parental order under section 54 of the HFEA. Furthermore, the NHS guidance and the HFEA guidance both recommend the use of a licensed clinic over home insemination due to safety reasons but neither suggest that the use of home insemination will prevent the making of a parental order under section 54. Mr Justice Macdonald was satisfied that the court was not prevented from making parental orders under section 54(1)(a), and then went on to consider the merits of the application by reference to the remaining criteria under section 54 as follows:

• The gametes of one of the applicants (AY) were used to bring about the creation of the embryo (s 54(1)(b))
• The applicants are married (s 54(2))
• The application was not made within six months of the birth of the children as required by s 54(3), however it is well established in case law that the court can make a parental order if an application is made outside of this timeframe
• The children’s home is with the applicants and the applicants are domiciled in England and Wales (s 54(4))
• Both applicants were over the age of 18 (s 54(5))
• The surrogate freely and with full understanding of what is involved, agreed unconditionally to the making of the order. The surrogate was married, however her husband was not considered to be a parent of the children as they had been separated for five years and he did not consent to the insemination (s 54(6)(7))
• The applicants did not pay anything more than reasonable expenses to the surrogate (s 54(8))
• No other orders have previously been made under section 54 (s 54(8A))

As the remaining criteria was also met, the court granted parental orders in respect of the children. Mr Justice Macdonald further commented in conclusion that he was ‘satisfied that it is manifestly in CY and DY’s best interests that these proceedings conclude and that the family are afforded certainty as to their legal parentage.’