The declaration was made in an application by a single father whose son was born following a surrogacy arrangement in the United States. The child is the biological son of the father, who had previously applied to the court for a parental order in terms of section 54 of the 2008 Act. Such an order would extinguish the parental responsibility of the surrogate and allow a UK birth certificate to be issued for the child. The effect of the order is that the child is treated in law as the child of the applicants. In terms of section 54(1), the court can make a parental order on an application made by "two people". Subsection 2 goes on to specify that those 'two people' must fall within one of three categories - a) husband and wife; (b) civil partners of each other; or (c) two persons who are living as partners in an enduring family relationship. Clearly, these provisions do not apply to a single person.
The argument put forward on behalf of the father in his application for a declaration of incompatibility was that section 54, insofar as it restricts the power of the court to make a parental order to cases where the application is made by "two people", is incompatible with the right of both the father and the child either under article 8 or alternatively under article 8 taken in conjunction with article 14 of the ECHR. The guardian appointed to the child supported the application. The Secretary of State made a concession that the current provisions of sections 54(1) and 54(2) are incompatible with article 14 taken in conjunction with article 8.
The Secretary of State accepted that the difference in treatment in a lawful surrogacy arrangement of a single person as opposed to a couple, on the sole ground of the status of the commissioning parent, can no longer be justified within the meaning of article 14. There was no concession that the provisions are incompatible with article 8 taken alone. There is no entitlement within article 8 or elsewhere in the ECHR to such an arrangement, nor is there any entitlement to a particular method of obtaining legal recognition of the parent-child relationship following a surrogacy arrangement. It would be possible for a single person such as the father in this case to adopt the child.
Whilst the father would have the option of applying for an adoption order, and thus the Secretary of State argued that there was no breach of the father's or of the child's article 8 rights, the very fact that one person can adopt a child arguably emphasises the anomaly of section 54 only applying to "two people".
Ultimately, all three parties to the application invited the court to make a declaration of incompatibility in the following terms:
'Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant and the Second Respondent under Article 14 ECHR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple.'
The President was satisfied, based on the facts and circumstances, that he could properly make a declaration in the terms sought. The father invited the President to express his views as to how the incompatibility might be remedied. He declined to do so, that being a matter for Parliament to determine. It remains to be seen whether amendments to the 2008 Act will be made in due course.