Articles 8 and 14 of the Human Rights Act, Archie, Harry, Meghan, and Surrogacy.

This article follows on from a previous one looking at the hypothetical situation that the Duke and Duchess of Sussex – henceforth simply referred to as Harry and Meghan, had used the services of a surrogate for the birth of their son Archie and later their daughter Lilibet. Please read the previous article for background Harry, Meghan, Surrogacy, Lady Colin Campbell, and How to Remove Someone From The Royal Line of Succession. In that article I suggested that it may be legally possible that Harry and Meghan applied for and secretly received a parental order for Archie given the known circumstances despite apparent discrepancies with existing UK legislation notably Human Fertilisation and Embryology Act 1990. This article will address why that may be possible.

To understand how this is possible we need to look at the Human Rights Act 1998. The aim of the legislation was to incorporate into UK law the rights contained in the European Convention on Human Rights without the need to go to the European Court of Human Rights. We’re going to have to look at the Human Rights Act in more detail but for now it it is sufficient to note that; It is unlawful for a public authority – including any UK court or tribunal and any person whose functions are of a public nature (ie, Registrars) – to act in a way which is incompatible with a Convention right and that the Human Fertilisation and Embryology Act is subordinate to the Human Rights Act.

The two Articles of the European Convention of Human Rights enshrined in the Human Rights Act 1990 that appear to be most often taken into account with regard to Surrogacy in the UK and Parental Orders are; Article 8 – Right to respect for private and family life and Article 14 – Protection from discrimination. At this point I’d just like to ask readers to please set aside any opinions they may have about Harry and Meghan and remind you that if this hypothetical situation did arise the courts would be considering Archie, an infant’s, human rights and not his parents.

Article 8 states: 1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 states: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

If we strip away the elements that would not be relevant to this hypothetical case a UK court would have to consider whether a) Archie’s privacy would be breached if knowledge of his surrogate birth were to be public knowledge, whether b) Archie would face discrimination as a result of that public knowledge due to his birth and social status, c) if the answer is affirmative to those two questions, whether the current legislative protections are sufficient to protect him, and if not, d) how Archie’s rights under Articles 8 and 14 can be protected.

a) It appears to me – I want to stress that I am not a legal professional – that would seem eminently arguable in a court, in this hypothetical legal context, that Archie’s privacy would be breached if knowledge of his surrogate birth were to be public knowledge.

b) It appears to me that Archie would face discimination as a result of that public knowledge due to the nature of his birth and social status. I am not alluding to the fact that Archie would be discriminated against by virtue of him not being eligible to succede to the throne. Even the Human Rights Act 1990 would be subordinate to the constitutional acts of Parliaments both in the UK and abroad that define the eligibility of that right. I’m suggesting that the stigma attached to him being ineligible would lead to discrimination.

c) That the current legal protections for children born of surrogacy contained in the Human Fertilisation and Embryology Act would not be sufficient to protect Archie from breaches of Article 8 and 14 of the European Convention of Human Rights enshrined in the Human Rights Act 1990 due to the inevitable public interest because of Harry and Meghan’s royal status.

d) The courts would therefore be obliged to examine how Archie’s rights under Articles 8 and 14 could be protected and make judgements accordingly.

The legal arguments and deliberations of such a case would be fascinating. Under normal circumstances a Parental Order, which would allow the replacement of the original birth certificate, which would then be sealed from public record, could not actioned until 6 weeks after the birth, the minimum period before the surrogate mother can legally give her consent to the parental order but in these extraordinary circumstances such a delay would clearly telegraph to the world the surrogate nature of Archie’s birth thus breaching his human rights. To protect Archie’s human rights there must be no unusual delay. Given the important nature of such a deviation from primary legislation, legal deliberation and a decision in principle would have to have been made prior to Archie’s birth and formalised soon after.

But a court can not just simply ignore legislation, can it? There are provisions within the Human Rights Act 1990 that give the UK Supreme Court, a High Court, or the Judicial Committee of the Privy Council the power to make a Declaration of incompatibility if they are satisfied that the legal provision is incompatible with a Convention right. However, such a declaration has no legal effect, it simply notifies parliament that such an incompatibility exists. Once a Declaration of incompatibility is made a government Minister may make a remedial order seeking to amend the incompatable legislation but this is normally a public process requiring Committee scutiny and approval in both houses of Parliament.

Interestingly, there is a provision for an Urgent remedial order which may be made by a Minister without advance Parliamentary (and public) scrutiny which stops being law if not approved by both Houses within 120 days of being laid before Parliament. Could such an Urgent remedial order have been made, in effect temporarily amending legislation for 120 days without ever being scrutinised by Parliament and debated in public? I think many parliamentarians would be very concerned, to say the least, if an Urgent remedial order were to have been made with no intention of being put before Parliament, temporarily and secretly amending legislation. I know that if this had happened I’d be outraged because of the loophole it would expose and the precedent it would set. That said if it were to be done it would have to have been considered by the Privy Council.to get senior cross party support before being made. Under the extraordinary circumstances that we’re examining, I couldn’t rule it out.

A far more likely process would be for the court considering these questions would be to rely on Section 8, Subsection 1 of the Human Right Act 1990. It reads:

“In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.”

In short, in a situation in which legislation is incompatable with the Human Rights Act a judge can do what he considers to be right and if they believe that in order to protect Archie’s human rights under Article 8 and 14 and that this could not be done otherwise and a few laws have to be bent then they could do it.

One point in favour of such a scenario having happened might be Harry and Meghan’s regular references to privacy. Many have mocked them as hypocrits for this but imagine that these references are red flag warnings to the press reminding them that there are legal consequences for breaking injunctions protecting Archie’s privacy. And consider also Harry’s ridiculous comment regarding The USA’s First Amendment procting free speech Worth thinking about.

I hope that you have found this article of interest and share it you think others might. If you have found it of interest then please check out my previous article which examines matters relating to this one Harry, Meghan, Surrogacy, Lady Colin Campbell, and How to Remove Someone From The Royal Line of Succession. Please leave a comment if you feel that I am mistaken on any point or if you prefer to contact me privately about this article you can email me at gojam57@gmail.com

Harry, Meghan, Surrogacy, Lady Colin Campbell, and How to Remove Someone From The Royal Line of Succession.

Like a great many that browse the internet, I had become aware of rumours suggesting that the Duke and Duchess of Sussex – henceforth simply referred to as Harry and Meghan, had used the services of a surrogate for the birth of their son Archie and later their daughter Lilibet. I had dismissed such rumours of moonbumps and surrogacy as the wildest of conspiracy theories, however having watched a recent Youtube video by Lady Colin Campell entitled, Meghan, Harry & THE BIG LIE e.g. Hitler & Goebbels/ final 26 Netflix lies/Best & Worst Awards 2022 I felt compelled to reconsider the hypothetical possibility that the allegations might be true.I want to stress that what follows is my interpretation of what Lady Colin Campell said. She was very circumspect and if I hadn’t already been aware of the rumours from other sources I probably wouldn’t have drawn the inferences that I did. I inferred that Meghan had intended to have the surrogate birth at home, at Frogmore Cottage, away from prying eyes but that there had been a complication with the surrogate pregnancy which had led to the birth being two weeks early and necessitated it taking place at The Portland Hospital. Lady Colin Campbell implied a long standing acquaintance with the wife of Meghan’s obstetrician which I inferred to be an allusion to one of her possible sources. Furthermore, Lady Colin Campbell made a point of stressing that Archie was never going to have African genetic features, this, I inferred, alluded to the possibility that the surrogacy was a Traditional, sometimes referred to as a Straight, surrogacy; which is a surrogacy in which the father, in this case Harry, had supplied the sperm to fertilise the surrogate’s own eggs – rather than a Gestational, sometimes referred to as a Host, surrogacy, whereby Meghan’s eggs had been ferilised with Harry’s sperm and subsequently implanted in the surrogate’s womb and that further, the surrogate had no African DNA making African features unlikely in the surrogate child.

Given that, “Only a natural-born child of a husband and wife can succeed to the Throne” under British law and that any child derived from a Traditional Surrogacy, and very likely a Gestational Surrogacy also, would be ineligible to succeed the throne, and that both Archie and Lilbet are listed as 6th and 7th in line to the throne respectively on the Official website of the British Royal Family. Written and managed by the Royal Household at Buckingham Palace this would, if true, be an extremely serious constitutional issue. As recently as 2013, while the Succession to the Crown Bill was being debated in the House of Lords, Lord True moved to ammend the Bill to include clarification with regard to children born of surrogacy not being eligible to the throne but the Government of the day felt that the law on this point was already sufficiently clear and that Human Fertilisation and Embryology Act 2005 already contained safeguards to ensure that there would be no legal confusion if the situation arose.

My approach at attempting to ascertain whether the scenario that I inferred from Lady Colin Campbell’s comments has validity is to assume that, considering the relatively large number of people who would be aware of the truth – the surrogate, hospital staff, other medical professionals, Royal staff, police/security, legal professionals, and the British Press, and even considering professional confidentiality, likely NDAs, and deference for our late Queen and current King’s wishes, such a course of events as laid out in the first paragragh could not be kept secret forever and therefore it would be foolhardy in the extreme for any person in the land to break the law to affect the misperception that the surrogate birth of a potential heir to the throne was natural. The obvious way to test this is to examine the Birth Certificates for Archie, or more accurately the certified copy of Archie’s Birth Certificate (17th May 2019)

Why would Harry and Meghan choose to put into the public domain an image of a certified copy of Archie’s Birth Certificate rather than an image of the original? I’m unaware of any other case of a Royal Birth where an image of the original wasn’t made public (I’m happy to be corrected) Below for comparison are Prince George’s Birth Certificate (Handwritten and signed by William, Prince of Wales) and Prince Louis’ Birth Certificate (Typed but also signed)

Naturally, Archie’s original Birth Certificate must have been signed and regardless of the fact that it is an image of a certified copy rather than the image of the original it does not appear less official if it is genuine. It carries on it a warning that there are offences relating to falsifying or altering a certificate and using or possessing a false certificate, furthmore the Deputy Registrar, Ms D Mevada has signed to certify that it is a true copy of an entry in a register in her custody. If it were not the case then Ms Mevada would have broken the law by signing a false declaration on an official document and if Harry had made a false declaration on the original, of which this is certified as an accurate copy, then he would have broken the law when he signed a document he knowingly knew to be false. Given, as I’ve written above that you’d have to be a fool to break the law to perpetuate a false impression about something which could hardly be kept secret forever, I believe the cerified copy of Archie’s Birth Certificate must be accurate and lawful. For those who might be tempted to believe that a falsified Birth Certificate is a minor crime, I’d remind them that it would be a deliberate and unlawful attempt to circumvent the Bill of Rights 1688 , Act of Settlement 1701 . and every constitutionally important Parliamentary Act since that touches on the Line of Royal Succession. It would be an attempt to dupe Parliament into legitimising an illegitimate heir to the throne.

The next question we must ask is whether it is possible for Meghan and Harry to be named on a Birth Certificate as mother and father if Archie had been born to a surrogate. The answer is that it can through a Parental Order. In that case a post-birth court order makes the intended parent or parents the legal parents of the child and permanently extinguishes the legal status and responsibilities of the surrogate and her spouse if she has one. Once a parental order is made, a UK birth certificate is issued recording the intended parents as the legal parents.  In UK surrogacy cases, this then replaces the original birth certificate which will then be sealed from public record. But this process usually takes between 4 to 12 months to complete. Could this process be expedited and completed within 11 days, the time between Archie’s birth and the date on the image of the certified copy of the birth certificate? No it can not. This is because of Section 30 Subsection 5 Human Fertilisation and Embryology Act 1990 which stipulates that the surrogate, and her spouse if she has one, must fully and freely consent to the order (unless they cannot be found or are incapable of giving consent). The surrogate’s consent is invalid if it is given before the child is six weeks old. A parental order can not by law come into force before the child is 6 weeks old.

Perhaps now is the right time to look at Archie’s ammended birth certificate. According to The Sun the change was made on June 5th 2019, 30 days after Archie’s birth. The date on the image is very likely the date that this copy was issued on request by the newspaper or another interested party.

The ammendment seeks only to change the names of both Harry and Meghan on the birth certificate, adding “Prince” to Harry’s titles and removing Meghan’s forenames. 30 days is still not the minimum 6 weeks stipulated in the legislation after which a surrogate can give consent to a parental order. That acknowledged, as Lady Colin Campbell wryly observes in the article. “It is extraordinary and raises all kinds of questions about what the Sussexes were thinking.” and our late Queen’s former press secretary Dickie Arbiter speculates in the article: “Maybe this was an early part of their plan.” But which plan?

Hypothetically, is it at all possible that Archie was born of a surrogate, that Harry and Meghan applied for and received a parental order and that no law was broken? I’m no lawyer and I’d welcome expert opinion on this issue but I would suggest that it might be possible but only by prioritising Archie’s right to privacy and other protections under human rights law and arguing that the extraordinary circumstances of Harry and Meghan’s position and inevitable intense press and public scrutiny justified extraordinary measures which would otherwise be unlawful. The legal process would have had to have begun many months before the birth of Archie, the minimum period after which a surrogate might have been constricted to 30 days, a legal dispensation may have been given to Ms Mevada the registrar but possibly with the stipulation that only an image of a mocked up certified copy of a fake birth certificate be published. It might aso be that injunctions were put in place, all to protect Archie.

This hypothetical situation would leave the UK Government and the Royal Family in an extremely uncomfortable postion. A judge might decide that by removing Archie from the Line of Succession on the official royal website would de facto expose the truth that he had been born of a surrogate, contravening human rights law.

Update: A second article examining how a surrogacy could be have been hidden using the Human Rights Act can be read here Articles 8 and 14 of the Human Rights Act, Archie, Harry, Meghan, and Surrogacy.

I’ll leave it to the reader to decide whether they believe this hypothetical scenario might have some basis because I want to move on to another question; whether it is possible to remove someone from the Line of Royal Succession.

Firstly, it needs to be stated that there is no ‘official’ Line of Royal Succession because it has always been thought that the eligibility for someone to be on it is clear. The list hosted on the the Official website of the British Royal Family. Written and managed by the Royal Household at Buckingham Palace is not a legally definitive list and the UK Parliament has no list, again because it has always been thought to be unneccessary. If a person is ineligible to succeed to the throne, for whatever reason, that person can not succeed to the throne regardless of whatever list they happen to be on. Removing an eligible person from the Line of Royal Succession is a different matter altogether.

Theoretically, it can be done but practically it is quite difficult and this is because of the Statute of Westminster 1931 which would almost certainly be invoked. This statute holds that the UK Government can not pass legislation that affects the 15 Commonwealth realms, Countries who share the British Monarch as their Head of State. The changes to the rules for the Line of Succession in Succession to the Crown Act 2013 first had to be agreed by all the Prime Ministers of 16 realms at the Perth Agreement. Removing an eligible person from the Line of Succession would need to be agreed in a similar way and imagine the mess that might ensue if the UK Government wanted to remove Prince Harry from the Line of Succession but, for example, the 8 (at time of publication) Caribbean Realms refused to agree. It would create a schism. So, theoretically it is possible to remove someone from the line of Succession but without unanimous agreement of 16 Realms passing legislation in each of their countries it can not be done.

Anyway, I hope that you have found this article of interest and share it you think others might. Please leave a comment if you feel that I am mistaken on any point or if you prefer to contact me privately about this article you can email me at gojam57@gmail.com

Have a Happy New Year!