illustration of family. Parents and children

‘Reading down’ the statute: The case of Re: A (Surrogacy: s.54 Criteria) [2020]

Mai-Ling Savage leading Stephen Lue, both of the Garden Court Chambers Family Team, acted for the father. Rachel Schon was the the third six pupil in this case.

In Re: A (Surrogacy: s.54 Criteria) [2020] EWHC 1426 (Fam) Mr Justice Keehan granted an application for a parental order in a case where a child had been conceived using surrogacy. The case was notable as it required the court to ‘read down’ a number of the statutory criteria contained in section 54 of the Human Fertilisation and Embryology Act 2008.

The criteria at issue were the requirement that the application be made within 6 months of the birth of the child; the requirement that the applicants be ‘living together as partners in an enduring family relationship’ and finally that at the time of the application and the making of the order, ‘the child’s home must be with the applicants’. While there had been previous cases where parental orders had been made in circumstances where one or two of these criteria had presented difficulties, this case was different in that all three of these requirements were not straightforwardly met on the facts of the case.