|Sir James Munby|
The case raised two simple questions: section 54(1) of the Human Fertilisation and Embryology Act 2008 provides that in certain circumstances the court may make a parental order on the application of "two people" - is it open to the court to make such an order on the application of one person? Can section 54(1) be 'read down' in accordance with section 3(1) of the Human Rights Act 1998 so as to enable that to be done? The President has held that the answer to each question is clear: "No".
The case concerned a child, Z, conceived in the USA with the applicant father's sperm and a third party donor's egg implanted in an experienced unmarried American surrogate mother. The father has since returned to this country, bringing Z with him. He then applied for a parental order.
It was argued on behalf of the father that the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people is a discriminatory interference with a single person's rights to private and family life, which is therefore inconsistent with Articles 8 and 14 of the Convention. The father's primary position was that there is in fact no incompatibility, because the relevant provisions of section 54 can properly be 'read down' in accordance with section 3(1) of the Human Rights Act:
"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."The President was unable to agree. S.3(1) did not entitle the court when interpreting legislation to adopt a meaning inconsistent with a fundamental feature of the legislation, and:
"Given that a parental order is a creature of statute, given that this part of the statutory scheme goes to the core question, the crucially important question, of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, in my judgment, a "fundamental feature", a "cardinal" or "essential" principle of the legislation..."Accordingly, the father's application failed in limine. As a single parent, as a sole applicant, the father could not bring himself within section 54(1) of the 2008 Act.