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Single parents, surrogacy arrangements and parental orders: the current situation

Date:17 NOV 2017
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Managing associate

Whilst it is possible in the UK for single parents to enter into surrogacy arrangements, UK law currently precludes single parents from obtaining parental orders in surrogacy cases. However, this discriminatory lacuna in the law is set to be remedied.

In the UK, a child can only have two legal parents. In a surrogacy arrangement, the surrogate mother will automatically be the child's legal mother at birth. If the surrogate mother is married or in a civil partnership, her husband, wife or civil partner will be the second legal parent.

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Parental orders were introduced in the UK in 1990. These orders are the mechanism by which legal parentage is transferred from the surrogate mother (and her husband, wife or civil partner) to the intended parents. Until 2010, it was only possible for heterosexual married couples to apply for parental orders. Since 2010, it has been possible for married and unmarried couples (including same sex couples) and couples in civil partnerships or same sex marriages to apply for parental orders. However, the law has not permitted applications for parental orders to be made by single parents, even though it is possible for single people to become parents by having IVF treatment or through adoption.

Therefore, the only possible route by which single parents have been able to obtain legal parenthood following a surrogacy arrangement in the UK, has been through adoption. In the case of B v C (Surrogacy: Adoption) [2015] EWFC 17, [2015] 1 FLR 1392, B a single man in his mid-twenties entered into a surrogacy arrangement with his mother who acted as the gestational surrogate mother with an embryo created with a donor egg and B's sperm. Being unable to obtain a parental order, he applied for an adoption order, which was granted.

However, the law had placed B in the nonsensical position of having to adopt his own child. The judge in the case, Theis J emphasised the complexity of the law stating: 

'It is therefore imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice as to how to proceed as adoption is the only means to ensure that they are the only legal parents of their child. The process under which they can achieve this is a legal minefield, they need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child.'

However, the legal regulatory framework was recently successfully challenged in the case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam), [2016] 2 FLR 327. In that case the applicant was the British biological father of a boy, Z, born following a surrogacy arrangement in the US. Although he had obtained a judgment in Minnesota extinguishing the surrogate mother's rights and responsibilities he was unable to apply for a parental order in the UK as a single parent. Therefore, under UK law, despite the Minnesota judgment, the surrogate mother remained the child's legal mother and she was the only person with parental responsibility for him. The father successfully argued that the law constituted a discriminatory interference with his rights to private and family life and the President of the Family Division made a declaration of incompatibility.

On 14 December 2016, Baroness Chisholm of Owlpen, speaking to the House of Lords stated: 

'The Government’s response to the recent High Court judgment that declared that a provision in the Human Fertilisation and Embryology Act 2008—which enables couples but not single people to obtain a  parental order following surrogacy—is incompatible with the Human Rights Act. We will, therefore, update the legislation on parental orders to ensure that it is compatible with the court judgment. I can confirm that the Government will introduce a remedial order to achieve this, so that single people can apply for parental orders on the same basis as couples.'

In August 2017, a House of Commons briefing paper confirmed that a remedial order was due to be introduced in Autumn 2017. We still await this development with interest. Once introduced, the remedial legislation will finally allow single applicants to apply for parental orders, removing the discrimination in the law and remedying the breach of the Human Rights Act identified in Re Z.

This article was originally published by Mishcon de Reya LLP