UK law has never prohibited single dads or mums having children through surrogacy, but the legal issues are complicated. That is because parental orders (which give parenthood to the intended parents after the birth and extinguish the status of the surrogate) are only currently available to couples, making the issues around parentage and nationality difficult for single parents to resolve. However, the good news is that the law is set to change.
We have fought a successful campaign to win rights for single parents conceiving through surrogacy over the past 10 years. In 2008 (when parental orders were opened to same-sex and unmarried couples) Natalie drafted an amendment to the law covering single parents too. This was debated in Parliament, but unfortunately blocked by the government which said that government policy was to allow surrogacy only for couples. We continued to campaign for change and in 2015/2016 represented the single father in the case of Re Z which challenged the law on human rights grounds. Ultimately the President of the High Court Family Division made a formal declaration that UK surrogacy law was incompatible with the Human Rights Act as it discriminated against single parents and their children. To remedy the breach of human rights law, a remedial order was introduced to Parliament in November 2017. This will amend section 54 of the Human Fertilisation and Embryology Act 2008 to allow single mothers and fathers through surrogacy to apply for a parental order in the same way as couples. It is currently being considered by Parliament and we hope the new law will be in force some time after October 2018. This useful Parliamentary paper gives a full summary of the current position as of 5 February 2018 (although please note that since then, issues with the drafting have been raised by the Joint Committee on Human Rights, and as a result the window of opportunity for this to come into force by July 2018 has been missed).
Under the new law, there is retrospective provision for single parents who already have children who have not until now been able to apply - instead of applying within six months of the birth they will be able to apply within six months of the law changing.
We will continue to keep this page updated as there is further news, and will alert people who email us at email@example.com when the window for applications is due to open.
You can read more about the history of how this law change has come about from our blog http://www.nataliegambleassociates.co.uk/blog/tag/remedial-order/
In the meantime, we are still finding creative solutions for single parents wherever possible.
If you are conceiving with a surrogate, it is important to ensure that you will be your child’s legal father when he or she is born. This depends on your surrogate’s marital status and where conception takes place, as well as biology. Find out more about UK parenthood law.
Most of the single dads we work with go overseas for surrogacy, usually to the US or Canada. If your child is born outside the UK, you will need to navigate British nationality and immigration law succcessfully to ensure your child has a permanent right to live in the UK.
You may also want to take steps to secure your legal status in the UK (since UK law treats your surrogate as the mother and may not not give you parental responsibility, even if you are the legal father). Until parental orders are available, some single parents are applying for child arrangements orders to secure their status as far as possible. Adoption is not a straightforward alternative to a parental order but may also be an option in some cases.
The legal complications make things even more difficult for single mums. The surrogate, rather than you, will be the legal mother of your child (even if you are the biological mother and even if you are named as the mother on a foreign birth certificate). Find out more about UK legal parenthood. If your child is born outside the UK, find out more about securing British nationality and the documentation you will need to travel home.
The law change will make things easier for single mothers who need the help of a surrogate to conceive a child, but only if they are able to use their own eggs. We are also campaigning for wider reform to enable single mothers to be able to be recognised as a sole legal parent after surrogacy if they conceive with donor eggs.
Have we answered your question? Would you like advice on your personal circumstances?
Email us at firstname.lastname@example.org or call on 020 3701 5915 and we will explain how we can help.