Extended feature: commentary on H v United Kingdom
In the second article in the National Surrogacy Week series, Natalie Sutherland, partner at Burgess Mee Family Law, looks at a European Court of Human Rights case which involved a young girl born through surrogacy.
The girl took the UK Government to Strasbourg claiming that she had been denied her Article 8 right to private and family life because her birth certificate named the surrogate’s husband as her father rather than her biological father, her intended father, who consented to the surrogate’s treatment to conceive her.
The applicant, known as “H”, was born in 2016 in the UK through a surrogacy arrangement. Her intended parents were two gay dads known as “A” and “B”. The surrogate was known as “C” and her husband was known as “D”. H was conceived from the egg of a donor and from the sperm of both A and B. It was subsequently found through DNA testing that A was the biological father. H conducted the litigation through a litigation friend, her intended father, B.
Had the surrogacy arrangement between A, B, C, and D proceeded smoothly, ultimately, A and B would have been able to apply for a Parental Order which would have extinguished C and D’s legal parenthood and parental responsibility forever, conferring it on A and B. A new birth certificate would then have been issued for H with both A and B named as her parents.
However, the relationship between the two sets of adults broke down during the pregnancy and C and D did not tell A and B that H had been born until after the birth. Despite not being biologically related to H, both C and D had the right not to consent to the making of a Parental Order. The court could not override this and so A and B were unable to make the application because C and D did not consent.
Instead, A and B issued proceedings under the Children Act and applied for a “lives with” Child Arrangements Order. In December 2016, the judge made that “lives with” order, thereby conferring on A and B parental responsibility, which C and D also had by virtue of being the legal parents. With four parents now having parental responsibility, the judge also made the following orders:
- That A and B should make all the day-to-day decisions for H, as well as decisions regarding her education, medical treatment and “all other parenting decisions”. It’s not clear whether a Prohibited Steps Order was made limiting C and D from being able to exercise their parental responsibility at all, but it is clear from the judgment that A and B were to make the parenting decisions.
- That H’s name be changed to incorporate A and B’s surname; and
- That C and D should have regular contact with H throughout the year.
C and D appealed this decision, but that appeal was dismissed by the Court of Appeal.
Without the surrogate’s consent to the making of a Parental Order, A and B were left in a position where neither would ever be H’s legal parents, they would never have a birth certificate with their names on and would likely always feel that the reality of H’s conception and birth and her legal documentation did not reflect the reality of her family life.
Understandably, therefore, the issue of why the birth certificate, which is a fundamental document in respect of a person’s identity, should record a lie was something H, via her litigation friend, wanted to challenge.
When conceiving through assisted reproduction the Human Fertilisation and Embryology Act 2008 (“the 2008 Act”) applies.
S33(1) states that the woman who carried the child as a result of the placing in her of an embryo of sperm and eggs, and no other woman, is to be treated as the child’s mother.
S35(1) states that if, at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, she was a party to a marriage or in a Civil Partnership with a man, and the creation of the embryo carried by her was not brought about by his sperm, then he is to be treated as the father, unless it can be shown that he did not consent.
S38(1) provides further clarification in relation to s35 which states where a person is to be treated as the father of the child by virtue of s35, then “no other person is to be treated as the father of the child”.
As a result of sections 35 and 38, therefore, A could not be registered as H’s father on her birth certificate instead of D, despite the fact that he was her biological father and D was not.
The English High Court proceedings
On the 1st of May, 2018, H, through her litigation friend B, wrote a letter before claim to the Secretary of State for Health and Social Care alleging that sections 35 and 38 of the 2008 Act infringed her Article 8 right to private life under the European Convention on Human Rights and sought a concession that sections 35 and 38 were therefore incompatible with her Article 8 rights.
The government’s response was that her rights had not been infringed because her relationship with A had been recognised through the making of the “lives with” Child Arrangements Order.
H thereafter sought permission to apply for judicial review and sought a declaration of incompatibility in respect of sections 35 and 38 and a declaration that those sections breached her human rights.
The arguments she put forward were that:
- She was being denied the social and emotional benefits of having legal recognition of her biological father and her day-to-day reality;
- The child arrangements order, whilst it gave A and B Parental Responsibility, lacked the long-term certainty of legal parenthood, as it would end when she turned 18;
- She would be precluded from obtaining Brazilian citizenship as of right (A being Brazilian); and
- She could be disadvantaged financially by the operation of inheritance law.
As such, the legislation had not struck a balance between the competing rights at stake.
In response, the government went into detail in their witness statements about how the law relating to assisted reproduction had evolved. Their overarching concern was to prevent the commodification of surrogacy. Three key areas were put forward as the drivers for the current policy and legislation:
- The desire to provide certainty for parents, gamete or embryo donors and especially children, and to ensure that gamete donors did not automatically become legal parents.
- The need to regulate assisted procreation so that it was not misused.
- The desire to enshrine the principle that while surrogacy agreements were lawful in the UK, they would not be enforceable.
In making her decision the judge said she should be “very cautious” before deciding that a provision, which was enacted by parliament and which was both rational and within the margin of appreciation accorded by the European Court of Human Rights (ECtHR), infringed a Convention right. She ultimately concluded that sections 35 and 38 were not incompatible with H’s Article 8 rights. Whilst she accepted that genetic or biological inheritance is an important facet of a person’s identity, and that the operation of sections 35 and 38 interfered with her Article 8 rights, the interference was relatively limited.
In respect of H’s arguments, the judge concluded that:
- H would, in reality, know her biological identity because A and B would tell her.
- There was no evidence that any harm would be caused by her not being a Brazilian citizen.
- Any suggestion about the impact on her inheritance rights was merely speculative and could be overcome by A and B making testamentary provision for her.
Specifically, the issue of whether a genetic father could be registered on the birth certificate in place of a surrogate’s husband had been raised in parliament in 2008 by way of a proposed amendment. This had been opposed by the government. Surrogacy arrangements were unenforceable by law because the government did not want to remove from the surrogate the right to change her mind. Enabling a genetic father to be registered on the birth certificate instead of the surrogate’s husband would undermine the surrogate’s autonomy and could open up a way for intended parents to claim custody of the child.
H had relied on the case of Mennesson v France (no. 65192/11, ECHR 2014) in her application. In that case, the ECHR found for the Mennessons and concluded that the surrogate born children’s Article 8 rights had been breached. However, the judge distinguished that case from the current case. The reason the Mennessons had been successful was because in France there was no possibility for the children’s genetic father to be accorded any legal status. In the UK, s54 of the 2008 Act would have provided an effective mechanism to establish legal parenthood for A. The only reason why A and B could not apply for this was because C and D did not consent. It was noted that A and B had not sought to argue that s54 was incompatible with the Convention.
The judge therefore concluded that the interference with H’s Article 8 rights were justified.
H sought permission to appeal. Her arguments were that:
- The Judge had failed to attach appropriate weight to the fact that naming A on her birth certificate would accurately reflect the factual situation for all parties.
- The Judge had been wrong to afford A the limited status of “gamete donor” when he was in fact the intended father, and wrong in her understanding that the objective of not naming a genetic father on the birth certificate was to prevent any tipping of the balance towards a more enforceable position for the intended parents.
H’s application for permission to appeal was refused as having no real prospect of success.
Complaint to the European Court of Human Rights
Having lost at first instance, and having been refused permission to appeal, H took her complaint to the ECtHR. Once again, she claimed that her Article 8 right to respect for her private life had been breached because D rather than A had been registered as her father on her birth certificate pursuant to sections 35 and 38 of the 2008 Act.
In the UK, a person’s birth certificate was “the identity template” which provided the record of birth, not only for H but for her children and generations to come. It should, therefore, have been a record of her birth history but was instead misleading.
H argued that there should have been a “normative presumption” that the birth registration of a child would accurately record the identity of the biological father, where consent was provided for conception and identification as the father. It was argued that this proposition reflected “unarguable international consensus” amongst the State parties to the Convention and justifications for the departure from this “normative starting point” should not give rise to a disproportionate violation of the child’s right to respect for its identity. As such, it was argued that it was not proportionate for sections 35 and 38 to operate as they did.
Whilst it was acknowledged that the State’s margin of appreciation in respect of the regulation of surrogacy arrangements was wide, it was narrow in respect of identity and recognition of legal status.
H also argued that regard should be had to Articles 3, 7 and 8 of the United Nations Convention on the Rights of the Child. This makes clear that the best interests of the child are paramount and that a child has, from birth, so far as it is possible, the right to know her parents and to preserve her identity without unlawful interference.
The government’s submissions
The government invited the ECtHR to reject H’s complaint as manifestly ill-founded.
They contended that there had been no interference with H’s Article 8 rights because:
- It could not be assumed that genetic parental relationships took precedence over other parental relationships. If this were the case, the egg donor would have been registered as the mother instead of C.
- On account of her young age, H’s view of her private identity was neither known nor ascertainable.
- This case was distinguishable from the other surrogacy cases previously heard by the ECtHR because there was no clear relationship between A and H. In fact, four people regarded themselves as her parents, and three of those as her father.
- H was provided with absolute certainty as to her legal parentage from birth; C and D were her legal parents, and this could only be changed by the domestic courts under s54 of the 2008 Act.
- There was no international contradiction in H’s identity since she was not recorded as being the daughter of A in any other country. Moreover, this was not a case where she could not or would not know of the genetic link between herself and A.
In the alternative, the government submitted that any interference was justified. It was not in dispute that any interference was in accordance with the law, or that it pursued a legitimate aim of protecting health and protecting the rights of freedoms of others by ensuring legal certainty and clarity as to whom the law treated as parents; ensuring that donors of gametes used in the process of assisted procreation were not treated as legal parents; and ensuring that surrogacy arrangements were not enforceable in domestic law.
Further, as there was no European consensus on the issue of surrogacy, the State had a wide margin of appreciation. The legislation in this area had been reviewed by parliament and was the subject of very considered legislative objectives.
Any duty on the State was to provide for the possibility of legal recognition of the relationship between A and H, and how that was realised was a matter for the State. In this case, legal recognition could be obtained through a Parental Order and by the granting of Parental Responsibility. Whilst A was not able to apply for the former, he had been granted the latter.
The ECtHR decision
Ultimately, the complaint was declared inadmissible as manifestly ill-founded pursuant to Article 35 3(a) of the Convention.
Whilst H had sought to rely on Mennesson and the Court acknowledged that the refusal to afford any legal recognition to the family ties between the intended parents and a child was capable of constituting an interference with the child’s right to respect for family and private life, in this case, H had not been wholly deprived of a legal relationship with A. H lived with both A and B and they both had parental responsibility for her; their names were incorporated into her surname and A and B had the right to make all the parenting decisions for her. In Mennesson, the parents had no legal relationship whatsoever.
The Court also found that H had not been wholly deprived of the possibility of establishing the details of her identity. A and B could easily tell her about the circumstances of her birth and involve her in her Brazilian heritage. Furthermore, there was no evidence that H had actually experienced any practical or material disadvantage by virtue of the operation of sections 35 and 38 of the 2008 Act. No harm had been occasioned by the fact she was not a Brazilian citizen and any issues over inheritance rights were speculative and capable of resolution via testamentary provision.
It was found, therefore, that the interference with H’s right to private life only arose from whatever degree of legal uncertainty might flow from the automatic recognition of D as her father rather than A. The interference, however, was “very limited indeed”.
The Court reviewed the domestic laws in the Contracting States and found there to be no consensus as to acceptance of surrogacy arrangements. From a comparative study undertaken in 2019, of the 43 Contracting States, 9 permitted surrogacy arrangements, they were tolerated in 10, and were either explicitly or implicitly prohibited in the remaining 24.
The Court found no evidence supporting H’s claim of an “unarguable international consensus” in favour of recognising the biological father on the birth certificate in the other Contracting States.
A number of factors must be taken into account when determining the breadth of the margin of appreciation to be enjoyed by an individual State when deciding any case under Article 8. The margin will be restricted where a particularly important facet of an individual’s existence or identity is at stake. But, the margin will be wider where there is no consensus within the member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, particularly where the case raises sensitive moral or ethical issues.
Interestingly, in this case, as both A and B’s sperm was used at the time of conception, when H was born, it was not known who her biological father was, whereas it was known who her legal father was. As such, the Court found that in light of the potential for considerable uncertainty regarding the parentage of a child born by way of assisted reproduction, the UK Government’s decision to create clear rules concerning legal parenthood fell within the wide margin of appreciation enjoyed by the States when deciding such matters.
It was noted several times throughout the judgment that the complaint raised by H related only to the incompatibility of sections 35 and 38 of the 2008 Act with her right to private and family life: to have her biological father named on her birth certificate. Both before the UK domestic courts and before the ECtHR the complaint did not seek to raise the Article 8 incompatibility of s54 of the 2008 Act. One wonders whether such a complaint might have had a different result.
In any event, the issue of birth certificates and the naming of fathers, as we know from the Freddy McConnell cases (R (on the application of TT) v The Registrar General for England and Wales and others  EWHC 2384 (Fam) and  EWCA Civ 559), are notoriously difficult to win. It will be interesting to see what the ECtHR makes of Freddy’s complaint in due course.
We also await the outcome of the Law Commissions of England and Scotland’s review into surrogacy law this Autumn as to whether they will recommend a change in the law to give judges the ability to override a surrogate’s lack of consent to the making of a Parental Order (which in this case would have meant that A and B became the legal parents and could be named on the birth certificate), or whether recommendations will be made as to a more modern and accurate birth registration process which factors in the many ways in which children can now be conceived and born.