Time for change on single parent surrogacy

  • December 6, 2017
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Single Parent Surrogacy Reform

There has been widespread praise in the press this week following proposed changes to fertility law and the legal rights of parents who have children through surrogacy in the UK.

Following the judgement of Re Z [2016] just over a year ago, the government has put forward a change to UK fertility law and sent a draft remedial order to Parliament with a view to change the law on surrogacy for single parents. If passed, the law will give single mothers and fathers the right to apply for secure legal status as parents in the same way that couples currently can.

Re Z (A Child) [2016]:

The change comes following the judgement of Re Z (A Child), a case involving a single father with a son born through surrogacy attempting to gain legal status as the father. In the case the applicant was the British biological father of a boy following a surrogacy agreement in the USA. Although he had obtained a judgement extinguishing the surrogate mother’s rights in the USA, he was unable to apply for a parental order in the UK as a single parent, with the surrogate therefore maintaining her right’s as the legal mother in the UK.

During the judgement, Sir James Munby made a declaration stating that the Human Fertilisation and Embryology Act 2008 was incompatible with Article 14 of the European Convention on Human Rights (no discrimination) in conjunction with Article 8 of the European Convention of Human Rights (the right to respect for private and family life). Declarations of incompatibility are extremely rare and therefore it is no surprise that the government has taken action fairly promptly to remedy the situation and have expressed their firm agreement that the law currently discriminates unfairly against single parents with children born through surrogacy.

Current law on single parent surrogacy:

As it stands under UK law, the surrogate and her spouse are the legal parents of a child born through surrogacy until the independent parents have obtained a parental order. However, the issue at the route of these proposed reforms is that for applicants to obtain a parental order, they must be a couple living together as partners in an enduring family relationship or spouses. Therefore, whilst it is possible for single parents to enter into surrogacy agreements and become parents by having IVF treatment or through adoption; in surrogacy cases at present, once the child is born they will not be able to obtain a parental order.

What is a parental order?

Parental orders were introduced in the UK in 1990 and dictate who legally has the status as a child’s parent. Without a parental order, parents will not have the authority to make decisions about a child’s education and medical care; will have to involve the surrogate in any future key decisions involving the child and can face legal complications obtaining or renewing a British passport or if they wish to move abroad. A parental order permanently extinguishes the parenthood of the surrogate and her spouse and once granted, allows the birth to be re-registered to record the intended parents as the legal parents. By preventing single parents from obtaining a parental order, they remain vulnerable in the eyes of the law and risk not being able to make the important life decisions necessary to be made as a parent.

When will the changes be implemented?

Although a draft remedial order to change the law has finally been proposed, it has not yet been passed and the law regarding surrogacy has not changed quite yet. Having said that, with such vast support surrounding the proposed changes, it is likely that the order will be granted and the law changed hopefully in the next 12 months. This is the first step towards single parents who rely on surrogacy having the rights that they deserve and we welcome the move towards a fairer reform as the UK government recognises the value of change in a time where family structures and lifestyles are becoming ever more diverse.

If you have any family law questions and need advice from a specialist, experienced and recommended family solicitor please email: kathryn.wilson@family-law.co.uk or telephone:

Wilmslow       01625 544650

Knutsford       01565 648228

London           0207 9474219

Manchester     0161 8048441

For specialist advice on any family law related issue contact Maguire Family Law by email: james.maguire@family-law.co.uk or telephone:

Wilmslow

01625 544 650

London

0207 947 4219

Knutsford

01565 648 228

Manchester

0161 804 8441