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 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


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7 responses to “Articles 8 and 14 of the Human Rights Act, Archie, Harry, Meghan, and Surrogacy.

  1. Peter Nowlan

    My father died getting the VC.When my highly intelligent and vivacious mother was told she went nuts ,I was taken away from her and spent my life in children’s homes.I ran away from England when I was 16.What distresses me is that as soon as you open your mouth in England you put yourself in a social class!

  2. tdf

    Off-topic, but a link to the recent Channel 4 documentary on the murder of Vishal Mehrotra can be found here:

    The case was examined on the Needle Blog in these posts:

  3. Beverley Mellor

    i am confused i read and understood what you wrote but as ido not follow the news where as the idea that the babies are surragates come from?

    • Peter Nowlan

      As someone who met and married a girl in six weeks . All I can say is give Harry and Megan some space.What you are witnessing is a grown man expressing the anger and frustrations of 12 year old who could not understand the death of his mother .

  4. Peter Nowlan

    With the greatest respect I think that such assertions are bunkum. There is a photo of my late mother sitting on the lap of Lord Louie Mount Battern. Both looked as though they were enjoying each other big time.I do not think that I am related to the royal family!

    • I haven’t made any assertions. I’ve simply attempted to explain how a hypothetical situation, that some have speculated about, might proceed. Not sure what you’re trying to say with you second, third, and fourth sentences. Very strange indeed…

  5. Pingback: Harry, Meghan, Surrogacy, Lady Colin Campbell, and How to Remove Someone From The Royal Line of Succession. | theneedleblog