Ruth Cabeza represents child’s guardian in untested interpretation of Human Fertilisation and Embryology Act 2008

20 May 2020

Ruth Cabeza represented the guardian in a case involving a child conceived via IVF, using the intended father’s sperm and carried by a married surrogate.  Tragically, the intended father died unexpectedly, 4 months before the child’s birth.

After the child's birth, the intended mother took care of the child and applied jointly with her deceased husband for a parental order that would:

  • make both intended parents the legal parents and
  • enable the intended father’s name to be included on the birth certificate.

The intended mother was not entitled to bring an application for a parental order as a single person because she had no biological connection to the child.

This case raises an important point of law as to the jurisdiction to make a parental order under section 54 Human Fertilisation and Embryology Act in circumstances where the application is made by a surviving intended parent on behalf of both intended parents. The issue had not been tested in any previous cases.

The court considered:

  • The extent to which s.54 HFEA could be ‘read down’ in the light of the Human Rights Act 1998, to extend jurisdiction to cases where the application is made by a surviving intended parent on behalf of a deceased intended parent;
  • the applicability of the Law Reform (Miscellaneous Provisions) Act 1934 in this context

The judgment in the case of Re X (Parental order: death of intended parent prior to birth) is available online.