A six-year-old British girl who was born to a surrogate mother using an anonymously donated egg and sperm from her biological father has lost her case in European Court of Human Rights to have her father named on her birth certificate.
In a complex case involving five people involved in her birth – a male couple of the same sex, one of whom is her biological father, a surrogate mother and her husband and the anonymous egg donor – the European Court of Human Rights ruled that the case was “manifestly unfounded”. “.
The court found that although the girl’s biological father is not mentioned on her birth certificate, she is not completely deprived of a legal relationship with her biological father.
The girl, known as H, along with her friend in lawsuits, same-sex partner of her biological father, claimed that British laws violated her right to respect for her privacy under Article 8 of the European Convention on Human Rights.
The girl lives with her biological father, known as A, and his same-sex partner, known as B, and is in regular contact with the surrogate, known as C, and her husband, known as D.
Currently, her birth certificate states that the surrogate mother who carried her as the embryo and the surrogate mother’s husband are her “mother” and “father” in accordance with the rules of the UK’s Human Fertilization and Embryology Act.
The girl’s case claimed that the parts of British surrogacy law relating to the automatic registration of the surrogate mother’s husband as her “father” on her birth certificate were obsolete and violated her right to her identity, specifically her right to an accurate birth certificate.
The law on human fertilization and embryology states that no other person should be treated as the father of the child. However, it is possible to apply for parental orders. Once this is done, the birth will be re-registered to register the intended parent or parents as the legal parent or parents. The certificate is similar to a birth certificate in long form.
This parental order can only be made by unconditional agreement between the woman who bore the child and the man who is the biological father.
In the case of girl H, the surrogate mother and her husband did not consent to a parent order being issued, so the biological father could not be recognized as the girl’s legal father. The girl was born in 2016 and lives in London.
In 2015, A and B entered into a surrogacy scheme with C and D, a married couple. C subsequently became pregnant with a donated egg and sperm from A.
Before the girl was born, there was a breakdown in the relationship between the couples. As a result, the surrogate mother and her husband did not initially inform the same-sex couple she was acting as a surrogate about the girl’s birth.
In December 2016, a judge in family court ordered that both couples should have parental responsibility for the girl.
The court issued an order on child arrangements stating that the girl should live with A and B, who should make all the daily decisions for her, as well as decisions regarding her education, medical treatment and “all other parental decisions”; that her name should be changed to incorporate the surnames A and B; and that C and D should have regular contact with her throughout the year. The Court of Appeal subsequently rejected C and D’s appeal against that decision.
The girl’s case argued that she was denied the social and emotional benefits of having legal recognition of her biological father. It said that even though A and B had parental responsibility for her, this lacked the quality of long-term security that legal parenthood had, and unlike legal parenting, it would cease when she was 18 years old.
Dr. S Chelvan, from the 33 Bedford Row Chambers and lead lawyer for the girl, said: “We are clearly disappointed with the outcome for H, who now has to live with a birth certificate that accurately records who her actual father is. Ironically, this decision lays clear weight and importance on the sovereignty of the British Parliament by the Strasbourg Court – a position which is clearly at odds with this government’s desire to push through the declaration of rights.”