Family loses bid to name father instead of surrogate’s husband

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Stock photo of a child. (envato)

A suit filed by a six-year-old daughter of a same-sex male couple born through a surrogate mother to name her biological father on her birth certificate has been held inadmissible.

The case, which went to the European Court of Human Rights, involved the girl’s father, one of whom is the biological father, the surrogate who gave birth to her with her husband, and an unknown egg donor.

The girl lives with her biological father, known in court as A, and her partner, known as B.

In 2015, A and B entered into a surrogacy agreement with a married straight couple – known as C and D.

As a result the woman became pregnant using an egg from an unknown donor, and a sperm from a . The girl, H, was born in 2016.

However, before the birth of the girl, the couple had a rift in the relationship, which complicated the legal rights of the parents of the child.

In December 2016, a Family Court judge ordered that both couples must take parental responsibility for the child.

Sections 35 and 28 of the UK’s Human Fertilization and Embryology Act (HEFA) state that the surrogate mother (C) and her husband (D) are the mother and father of the girl, and if A and B wish to be her legal parents If so, they will have to apply for parental orders, and re-register their births.

However, this can only be done with the consent of the surrogate mother and biological father. In this case, C and D did not consent to the biological father (A) being recognized as the parent, and the case to be named on his birth certificate was quashed.

The matter was taken to the High Court in 2019. It was argued that the rights of the child to private and family life under Article 8 of the Convention on Human Rights are being violated by Sections 35 and 38 of HEFA.

The Court of Appeal declined to hear an appeal, which was followed by an application to the European Court of Human Rights (ECTHR). However, on Wednesday (June 23), the court ruled the claim as inadmissible as home remedies remained an option.

Dr S Chelvan, Head of Immigration and Public Law at 33 Bedford Row Chambers, representing the child, replied: “We are clearly disappointed with the outcome of H, who will now have to live with the wrongful birth certificate showing his actual Recording father.

“Ironically, this decision by the Strasbourg Court places a clear weight and importance on the sovereignty of the UK Parliament – a position clearly contrary to this government’s campaign to advance the Bill of Rights.”

Colin Rogerson, partner at law firm BLM, who also represented H, said: “While we are deeply disappointed by this outcome, the Court has highlighted issues that will need to be addressed by the Law Commission in its report.

“In this decision the Strasbourg Court is very clear that it is left to the UK Parliament to make its own laws and policies regarding surrogacy and parentage.

“I have great hope that the Law Commissions who are currently reviewing to make recommendations for reform of surrogacy law will place a child as a key issue to preserve their right to identity.”

The girl now lives with A and B, although she has maintained relations with C and D as well as their extended family.

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