Two means two, but must does not mean must: an analysis of recent decisions on the conditions for parental orders in surrogacy

This article examines the High Court decisions in Re Z (A Child) (Surrogate Father: Parental Order) [2017] 1 FLR 472 and Re X (A Child) (Parental Order: Time Limit) [2015] 1 FLR 349, which concerned two of the conditions for the granting of ‘parental orders’ after surrogacy in section 54 Human Fertilisation and Embryology Act 2008. The article observes that the strict approach employed in Re Z to the interpretation of the requirement that an application be made by ‘two people’ in section 54 (1), contrasts with the ‘liberal’ approach taken in previous cases, including Re X, concerning the six month ‘time limit’ during which applications ‘must’ be made in section 54 (3). This article suggests that the judgments do not fully engage with this divergence, instead presenting the different approaches as an uncontroversial matter of statutory interpretation. The article argues that these different outcomes can be explained by the continuing policy significance of the two-parent model within the attribution of legal parenthood in cases of assisted reproduction. The article concludes that the contrasting and contradictory reasoning of these decisions illustrates the need for wholesale legislative reforms of surrogacy arrangements.