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Surrogacy – law reform for single parents?

More people are turning to surrogacy, with figures showing that the number of children being born through surrogacy had almost tripled in the last…

More and more people are turning to surrogacy, with figures last year from the Ministry of Justice Family Court showing that the number of children being born through surrogacy had almost tripled in the last three years in the UK.

When a child is born pursuant to a surrogacy arrangement the surrogate mother is classed as the legal mother of the child and will automatically have parental responsibility for that child. It is, however, possible for the intended parents to obtain a “parental order” which effectively transfers the legal parentage and parental responsibility from the surrogate mother (and her husband, if she is married) to the intended parents. The child is then treated for all intents and purposes in law, as their child.

At present, however, parental orders are not available to single parents. Section 54 of the Human Fertilisation and Embryology Act 2008 provides that only those who are married, in a civil partnership or in an enduring family relationship can apply for a parental order. It appears to be accepted by the government that when the surrogacy legislation was originally passed, single parents were consciously excluded from the legislation amid concerns that single parents may struggle to cope with the demands of bringing up a child. At that time it was thought that it would be better if single parents were forced to go down the adoption route which involved a far more rigorous assessment process.

This was, however, challenged in the case of Re Z (A child) (No. 2) (2016) EWHC 1191 (Fam). In this case, a British man attempted to gain legal status of his biological child after employing the services of a surrogate in the US. His application was refused on the basis that he was a single parent, thus leaving the surrogate as the legally recognised parent in the UK. Naturally, the father sought to challenge this decision on the basis that the law as it stands is discriminative and is based on an outmoded normative view of what should constitute the 'correct' family structure.

Ultimately Sir James Munby, the President of the High Court Family Division made a formal declaration stating that UK surrogacy law was incompatible with the Human Rights Act. Such declarations are rare and effectively prompted the government to review the current legislation concerning Parental Orders.

A draft remedial order was laid before parliament in November 2017 which proposed an “equal approach for a single person and couples in obtaining legal parenthood after a surrogacy arrangement.”

Shortly thereafter (in March 2018) the Parliamentary Joint Committee on Human Rights reported to parliament on the draft remedial order. They highlighted a number of concerns including the following:

  1. The initial draft only allowed one person to apply for a parental order if they were not in an “enduring family relationship”. This meant that if they were married or cohabiting with a partner they could only apply for a parental order jointly with their spouse/partner. Hence in the event that their partner did not agree to becoming a legal parent too, they would be prevented from making the necessary application, even if their relationship with their new partner was in its infancy and they had not been involved in the surrogacy. This would have had the effect of permanently depriving some biological parents from the opportunity of acquiring parenthood status of their own children. The committee expressed concerns about this requirement and commented "Trying to put a blanket ban on a person who is in a couple getting a single parental order is clumsy and inflexible as well as discriminatory."

    To date the government has not explained why they deemed it necessary to require a single parent's partner with no biological link to the child to be recognised as that child's parent in order for the biological parent to be so recognised. Certainly this is not the case for children conceived without recourse to a surrogacy arrangement.

  2. In addition the initial draft stated that if the single person was separated from their former partner but remained married or in a civil partnership then they would be obliged to prove that the separation was permanent in nature. Similarly, the committee recommended that the government reconsider its position in this regard.

The government took on board the above criticisms and have indicated that they will remove such restrictions from the draft remedial order, so the final draft should allow all single biological parents to be recognised as legal parents of their own children.

The draft remedial order has now gone back to Parliament for a second time and it is hoped that the new law will come into force towards the end of January 2019.

The rules will be retrospective so that single parents who already have children will be able to apply for a parental order within six months of the law changing, which will enable them to acquire a UK birth certificate and the status of being their child’s sole legal parent.

For many, these changes have been a long time coming and represent an overdue acknowledgement of the important role that surrogacy plays in our society, helping to create much-wanted families in a world where attitudes and lifestyles are increasingly diverse.

Rachel Lim is an associate in Weightmans’ family team.

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