When faced with a situation that two young boys could not have their deceased father’s name on their birth certificate, it was the Human Rights Act that meant the family could challenge this, and bring about a change in our law.


Diane’s story


Diane and Stephen Blood had been married for three and a half years and were trying for a family when Stephen fell seriously ill with meningitis and deteriorated rapidly, before losing his life. Shortly before this, whilst he was in a coma, Diane asked doctor’s to take sperm samples – she and Stephen had discussed this very situation, prompted by a magazine article and he had hoped Diane would still want his children in such circumstances. Diane has also since said, had Stephen survived the impact of the medication he’d been given to try and treat the meningitis was so strong it may have affected his ability to have children, something she knew was so important to him.


Following Stephen’s death Diane decided she did want to conceive Stephen’s child. There were however some pretty significant legal issues, and following a legal battle Diane was eventually granted permission to conceive her children using IVF. However, that was not the end of the hurdles for Diane and her two sons Liam and Joel. Once her children were born the rules in the Human Fertilisation and Embryology Act 1990 meant that the boys’ deceased father’s name could not be placed on their birth certificates.


How the Human Rights Act helped


This is where the Human Rights Act came in, because it protects everyone’s human rights to respect for family life (Article 8), and to not be discriminated against when enjoying this human right (Article 14). Being able to maintain our family relationships, to know who we are and where we come from is a fundamental part of being human, and something which our Human Rights Act has recognised. The courts found that this piece of law was incompatible with the right to family life together with the right to non-discrimination, to the extent that it did not allow a deceased father's name to be given on the birth certificate of his child.


So did the courts invalidate the law … well no, but …


And this is where the Human Rights Act’s neat solution to the issue of who gets to make and unmake laws in our democracy comes into its own. In our constitutional arrangements the government proposes laws, parliament passes (or revokes) them, and judges interpret and apply laws in individual cases. This arrangement of power is not threatened by the Human Rights Act – the courts cannot “strike down” or invalidate laws (or Acts) passed by parliament. Under the Human Rights Act courts (and only the top ones) can declare a law to be incompatible. This sends a strong signal back to parliament and government that they should look again at the law which is not respecting human rights.


This model of democratic dialogue has worked well throughout the Human Rights Act’s 15 years. There have been fewer than 30 Declarations of Incompatibility. In virtually every instance government and parliament pick up the mantel and change the law to clear up the human rights issue.


The difference our Human Rights Act made …


In Diane’s case the law was changed by the Human Fertilisation and Embryology (Deceased Fathers) Act 2003, which came into force on 1 Dec 2003. This now allows for a deceased man to be registered as the father of a child born as a result of fertility treatment undertaken after his death.  


As Diane Blood has said “I couldn’t have had the life I’d planned without children, and them being able to name both of their parents on their birth certificates is a part of their human rights and their identity that I think was important to fight for.”


(For more information about Diane’s story visit her website here)