Change to surrogacy law in favour of single parents

January 25, 2019

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A change in the law has opened the door for single applicants to apply for a parental order with respect to their biological child born through a surrogacy arrangement.

The ‘Remedial Order’

The change in the law has come about as a result of the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 (the “Remedial Order”) which came into force on 3rd January 2019. The purpose of the Remedial Order is to resolve the incompatibility of section 54 of the Human Fertilisation and Embryology Act 2008 (which provides that an application for a parental order must be made by two people) with the European Convention on Human Rights, specifically the right to respect for private and family life (Art 8) and the prohibition of discrimination (Art 14).

What is a parental order?

A parental order transfers the rights and obligations of parentage to the intended parent or parents, providing certain conditions are met. The effect of the parental order will also be to extinguish the parental status of the surrogate parents. Applications for a parental order must generally be made to the court within six months of the birth of the child.

What is the effect of the new law?

The Remedial Order introduces section 54A into the 2008 Act so single parents can now apply to become a child’s legal parent and consequently obtain a UK birth certificate to reflect their status. Prior to 3rd January 2019, parental orders were only available to couples who were in a relationship akin to marriage.

The Remedial Order is made against the backdrop of Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) [2015] EWFC 73, a 2015 case in which a father alone applied for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008. His application was dismissed on the basis that such an order was not available to a sole parent. The High Court did however rule in May 2016 that the inability of a single person to obtain a parental order was incompatible with the European Convention on Human Rights and in December 2016, the Government confirmed that it would lay a remedial order before Parliament to allow single people to apply for a parental order. The result is the present Remedial Order and the Human Fertilisation and Embryology (Parental Orders) Regulations 2018 (new parental order regulations issued as a consequence of the Remedial Order), which came into force on 20 December 2018.

Single parents now have until 2 July 2019 to apply for a parental order retrospectively.

If you would like to discuss surrogacy and adoption further, please contact Family Law in Partnership consultant Pamela Collis on T: 020 7420 5000 or email Pamela at E: pc@flip.co.uk. For more information on surrogacy arrangements and adoption, please also visit our dedicated webpage here.