The tension between competing statutory obligations in the granting of parental orders: A systematic review of the case law

This article critically examines the judicial approach to granting parental orders following surrogacy under s 54 Human Fertilisation and Embryology Act 2008 in England and Wales. Whilst the child's welfare is the court's paramount consideration, the statutory requirements of s 54 can, at times, conflict with this principle. Through a systematic review of the case law, this article explores how courts have navigated the tension between fulfilling statutory obligations and guaranteeing the lifelong welfare of the child. It reveals that certain s 54 criteria – such as time limits, the home requirement, and restrictions on payments – have been interpreted flexibly to prioritise welfare, whilst others – including the genetic link requirement and surrogate's consent – remain rigidly applied, occasionally to the detriment of the child's welfare. The analysis highlights the doctrinal and legal incoherence that arises when courts are forced to reconcile competing statutory duties. This tension must be recognised and reflected in any reform of the law. The findings offer valuable insights for jurisdictions considering surrogacy regulation and underscore the need for a coherent legal framework that enables courts to make welfare-driven decisions without statutory compromise.