Fri, 04 Jan 2019
The High Court has granted permission for a challenge to the lawfulness of sections 35 and 38 Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’) in R (H) v Secretary of State for Health and Social Care (‘SSHSC’).
In a decision dated 20 December 2018 Pepperall J granted permission to the claimant (‘H’), a minor to apply for a judicial review of the SSHSC's defence of the lawfulness of sections 35 and 38 of the HFEA 2008. The impugned sections provide that the husband of a surrogate mother is to be treated as ‘the father’ of the resulting child unless it is shown that he did not consent to the placing in the surrogate mother of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).
H, who was born as a result of a surrogacy arrangement governed by the HFEA 2008, seeks a declaration that sections 35 and 38 of the HFEA 2008 to the extent that they prevent her biological father from being recorded as her father on her birth certificate and treated as her legal father infringe her rights under articles 8 and 14 of the European Convention for the protection of Human Rights and Fundamental Freedoms. H also seeks a declaration of incompatibility under section 4 Human Rights Act 1998.
The claim will now proceed to a full hearing.
Please click here to access the Order granting permission.
Richard Alomo and S Chelvan act for H (through her litigation friend, B) via the Bar Council's Public Access Scheme. B is the same-sex partner of H's biological father (‘A’).