A woman whose husband died after they had undergone IVF treatment has obtained a parental order for their baby after she was born to a surrogate mother.

The couple, who were referred to in court as Mr and Mrs Y, married in 2013. After several unsuccessful IVF treatments, they entered into a surrogacy agreement with another couple, Mr and Mrs Z, in 2017.

The agreement between them set out their intentions, which included Mr and Mrs Y applying for a parental order after the birth of the child.

An embryo was created using the gametes from Mrs Z and Mr Y and was transferred to Mrs Z in May 2018. When Mrs Z was five months pregnant, Mr Y died unexpectedly. The baby girl was born the following year. Mrs Y was present at the birth and the baby had been in her care ever since.

The baby’s birth certificate named Mr Z as her father, but Mrs Y wanted to have Mr Y recognised as the father. Mr and Mrs Z fully supported the application, but Mr Y’s death meant that certain requirements of the Human Fertilisation and Embryology Act 2008 s.54 were not met.

The court had to determine whether those requirements could be met under the Human Rights Act 1998.

It decided that a parental order could be made naming Mr Y as the father.

It held that the state had a responsibility to ensure that it respected the baby’s right to a private life and that extended to ensuring recognition of her identity as the child of her deceased father. Without a parental order being made, she would not be able to have a birth certificate that reflected the relationship and connection that she had with Mr and Mrs Y as her parents.

A parental order should be made that would meet the baby’s lifelong welfare needs.

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Case Citations: [2020] EWFC 39(1) MRS Y (2) MR Y v (1) MRS Z (2) MR Z (3) X (THROUGH HER CHILDREN’S GUARDIAN MARIA DOUGLAS) (2020) Fam Ct (Theis J)

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