What happens if an intended parent dies before a child conceived through surrogacy is born?

The Family Court recently considered this question in the case of Re Y and Z (Surrogacy Death of Intended Parent) [2026] EWFC 135 https://www.bailii.org/ew/cases/EWFC/HCJ/2026/135.html where applications were made for parental orders for twins Y and Z, born via surrogacy in Country J using embryos created from A and B's gametes. B, the intended father and genetic parent, died shortly before the twins' birth in early 2024, and A has cared for them in the UK since shortly after birth. A sought amendment of her initial sole application to include B, relying on reading down section 54 HFEA 2008 under section 3 Human Rights Act 1998, as it had done in two earlier cases Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] 2 FLR 1326 and Y v W [2022] EWFC 34. The Children's Guardian supported the application; the first respondent surrogate G did not attend but had notice and consented in writing.

The Legal Framework and Reading Down

The ordinary construction of section 54 HFEA requires two living joint applicants and would preclude a joint parental order where an intended parent dies pre‑birth. The court held that such construction is incompatible with Articles 8 and 14 ECHR regarding the children's identity and non‑discrimination rights. Article 8 is the right to respect for private and family life and Article 14 is the right not to be discriminated against bearing in mind that children conceived naturally are entitled to have their deceased genetic father registered on their birth certificate. The Court therefore was able to permit a posthumous joint application where death occurred after conception and held that the reading down went with the grain of the legislation and did not to undermine a fundamental feature of the HFEA 2008.

Human Rights Analysis

The children's Article 8 private life rights include legal recognition of their identity and genetic parentage, per ECtHR authority including Mennesson. A sole parental order would extinguish B's current legal parenthood under section 67 ACA 2002, undermining the twins' identity rights. Children conceived naturally can have a deceased genetic father recorded on the birth certificate, creating discriminatory treatment if a joint parental order is barred. The interference from the ordinary construction was disproportionate under the relevant proportionality test, with no less intrusive measure achieving the aim.

Factual Findings Supporting Section 54 Criteria

A and B were married and British citizens, with embryos created in the UK and transferred to G (the surrogate) in Country J through an agency. The surrogacy agreement in 2023 envisaged A and B as legal parents and addressed the death of one intended parent before birth. Y and Z were born in early 2024; A filed the application in June 2024, within six months of birth. The children's home has been with A since birth; A is domiciled in the UK; A is over 18 and B was over 18 at death. G was unmarried, provided notarised consent more than six weeks post‑birth, and confirmed consent later via the appropriate form. The payments to G totalled 22,200 Euros; the court was invited to authorise sums beyond reasonable expenses, with no bad faith found.

Welfare and Outcome

The Guardian's Parental Order reports described A as resilient and able to meet the children's needs, recommending parental orders to secure identity and permanency. The court found the section 54 criteria satisfied as read down and determined the twins' lifelong welfare required parental orders for each child naming A and B as their legal parents. The Court therefore made the orders as requested.