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Elizabeth Isaacs QC secures Declaration of Incompatibility in landmark surrogacy case



Instructed by specialist fertility law firm Natalie Gamble Associates, Elizabeth Isaacs Q.C and Adem Muzaffer acted on behalf of the applicant father in the landmark decision of Re Z (A Child) (No. 2) [2016] EWHC 1191 (Fam). 

The case concerned 'Z', a 21 month old boy born through a recognised US surrogacy arrangement, who lives with his British single father in the UK. By virtue of his status as a single person, the father is prohibited by statute from applying for a Parental Order, which would extinguish the responsibilities of the surrogate and lead to the issue of a birth certificate for Z in the father's name. 

Elizabeth and Adem successfully argued that the provisions of the statute in question, namely sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008, are incompatible with the rights of the father and the child under Article 14 of the European Convention on Human Rights taken in conjunction with Article 8, insofar as they prevent the father from obtaining a parental order on the sole ground of his status as a single person. As such, the President of the Family Division, Sir James Munby, agreed to exercise his discretion and make a formal Declaration of Incompatibility pursuant to s.4 Human Rights Act 1998. The declaration has the effect of forcing Parliament to consider changing the law to remedy the incompatibility, something that the Government have already indicated that they intend to do. It is noted that only 20 final Declarations of Incompatibility have been made since the implementation of the Human Rights Act 1998, and that all but one of these have resulted in the law being changed.