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.

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Publication Details

Journal
Common Law World Review
Published
2026-03-23
DOI
https://doi.org/10.1177/14737795261434019
Primary Topic
Reproductive Health and Technologies
Type
article
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article

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

Lottie Park-Morton
Common Law World Review
Reproductive Health and Technologies
article

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

Lottie Park-Morton
article en

Abstract

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.

Common Law World Review
University of Gloucestershire (GB)
Openalex Percentile: Top 10%
Reproductive Health and Technologies
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The tension between competing statutory obligations in the granting of parental orders: A systematic review of the case law — Lottie Park-Morton · Common Law World Review (2026) | TGRS Research Map | TGRS