Re Y and Z: court extends posthumous parental order remedy to children born after a UK surrogacy death

When Mrs Justice Theis handed down Re X (Parental Order: Death of Intended Parent Prior to Birth) in 2020, it was tempting to treat it as a one-off, a humane response to an unusually tragic set of facts. Re Y and Z (Surrogacy: Death of Intended Parent) [2026] EWFC 135 suggests otherwise. The same judge, applying the same reasoning, has now made a joint parental order naming a father who died before his children were born, confirming that the "reading down" of section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) is becoming an established feature of this area of law rather than an exception confined to its facts.

The facts will be familiar to anyone who has followed this line of cases. A and B, a married couple, used a Ukrainian surrogacy arrangement to have twins, Y and Z, conceived using embryos created from both their gametes. B died shortly before the birth. A travelled to Ukraine, brought the children home, and applied for a parental order in her own name, initially without legal advice.

What makes this judgement worth attention is not the outcome, which followed Re X closely, but the procedural route the court took to get there. A's original application named only herself. With pro bono representation from Forsters LLP, she sought to amend it to add B as a joint applicant, despite his death. Mrs Justice Theis permitted this under the case management powers in FPR rules 4.1(3)(o) and 13.3(5), reasoning that her interpretative obligation under section 3 of the Human Rights Act 1998 (HRA 1998) extended to the procedural mechanism by which the substantive remedy could be reached. This is a useful reminder that the "reading down" exercise in this context is not confined to the wording of section 54 itself; it can also touch how an application is constituted and amended.

The substantive analysis tracks Re X almost paragraph for paragraph. The ordinary construction of section 54 requires two living applicants at the point the order is made, which on its face shuts out any case where one intended parent dies before birth. Mrs Justice Theis again found this incompatible with the children's rights under Articles 8 and 14 of the European Convention on Human Rights, both as a matter of identity (the legal recognition of a parent-child relationship, per Mennesson v France) and as a matter of discrimination compared with naturally conceived children, whose deceased fathers can still be recorded on a birth certificate.

The judgement also addresses a wrinkle that did not arise in Re X: what happens if the reading down argument fails. Here, B was already Y and Z's legal father at common law, since the surrogate was unmarried. A sole parental order in A's favour would, by virtue of section 67 of the Adoption and Children Act 2002, have extinguished that existing relationship, leaving the children worse off than if no order were made at all. This asymmetry strengthens the case for the joint order as the only outcome that avoids harm in either direction.

For a doctrine built on judicial interpretation rather than legislative amendment, repetition matters. Two reported decisions reaching the same result on materially identical facts start to look less like an exercise of discretion and more like settled law, pending the statutory reform that Parliament has so far declined to provide.