In 2016 NGA Law represented a single father who had a child through surrogacy in the US in a parental order application, and managed to win a formal declaration from the President of the High Court Family Division that the current law discriminates against single parents and their children. The President confirmed that the current law is in breach of the Human Rights Act and the House of Lords confirmed that they would be updating the legislation on parental orders to allow single people to apply for parental orders on the same basis as couples.
Initial proposals suggested that the remedial order (which is a fast track procedure by which the government can amend law which has been declared to be incompatible with human rights) would be laid before Parliament in early 2017 however, as a result of the current political climate this has been delayed and the current position is that it will instead happen in the autumn session of Parliament. This is understandably, a frustrating delay for single parents, but some progress has been made and the House of Commons Library has put together a briefing paper considering the legal background and the changes required. A copy of this note can be found here.
In the meantime, another case has come before the High Court, highlighting again the urgent need for this change.
The case relates to a UK surrogacy arrangement in which a friend of a family member offered to be a surrogate for the intended parents. They worked with a fertility clinic and created embryos with both the intended parent’s gametes. Following embryo transfer the surrogate became pregnant.
Unfortunately during the course of the pregnancy the intended parent’s relationship broke down and they eventually separated; the intended father was not present at the birth and does not wish to be involved with his son’s upbringing. At the birth, the surrogate surrendered care of the baby to the intended mother who has been caring for him as a single mother ever since his birth.
The child was initially made a Ward of the Court on 28 February (which essentially means that no important step can be taken in his life without the leave of the court) and the intended mother was granted parental responsibility, which gave her the authority to make decisions in respect of her son’s care. The parties in this case invited the court to give judgment in this case in order to bring again to the attention of Parliament and the wider public, the importance of this remedial order and in particular, the hope that it will allow parents to make the application retrospectively.
We are pleased to say that the recent briefing paper has confirmed this position, and understand that the remedial order will include a provision to allow for retrospective applications for single parents who have had a child born through surrogacy more than 6 months previously.
This case clearly demonstrates how this change in the law is not only fundamental for parents who are conceiving a child with the intention to bring them up as a single parent, but also for parents (such as in this case) who have not necessarily planned to be in this position, but still need to find a way to secure their position as their child’s legal parent.
While the law change in respect of single parents will be welcomed by many, this case also highlights the need for wider reform of the law in relation to surrogacy in the UK. Although the remedial order (once laid before Parliament) will allow the intended mother in this case to be recognised as her child’s sole legal parent, it also leaves her with no way of seeking any financial support from the child’s biological (and intended) father, should she want/need to do so. The ideal solution would be earlier recognition of parentage for both individuals and couples entering into surrogacy arrangements, which would mean that (in this case) the individuals who decided to conceive a child together would both be legally recognised and legally/financially responsible. The Law Commission is currently considering whether to conduct a review of surrogacy law in the UK as part of its next programme and we hope to receive an update soon about this.
We are keeping various single parents who are interested in the law reform posted as things move forward; if you would like to be kept up to date please email us at firstname.lastname@example.org and we will be happy to include you in our updates. We will also be keeping our blog up to date in respect of the wider law reform and so do keep an eye on this for future updates.
Alternatively if you have any specific questions please do not hesitate to get in touch and we would be happy to assist.Tags: Autumn session, Bethan Cleal, discrimination, domestic surrogacy, family court, Family Law, fertility clinic, fertility law, High Court, House of Commons, House of Lords, Human Rights Act, international surrogacy, law reform, Natalie Gamble Associates, NGA Law, parental order, parental order application, Parliament, President of the Family Division, relationship breakdown, remedial order, single dad, Single mother, single parent, Sir James Munby, surrogacy law, surrogate, surrogate mother, UK surrogacy