The president of the family division and the head of the family justice system , Mr Justice Munby, has rejected a single parent’s application for a Parental Order.
This is following the birth of a child through a surrogacy arrangement in Illinois, US. Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order)  EWFC 73.
I have previously highlighted the stringent and very often complex and ambiguous surrogacy laws here in England and Wales which new parents face when they return to the UK following a surrogacy agreement abroad. Often the commissioning parents who engage the surrogate are married or civilly partnered and have been in enduring relationships for some time; however, some commissioning parents have embarked upon what for many is a new and unfamiliar path of family planning as a single parent.
Section 54 of the Human Embryology and Fertilisation Act 2008 provides:
"(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child”… and that the applicants must be (2)
- (a) husband and wife,
- (b) civil partners of each other, or
- (c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
The case before Mr Justice Munby concerned an applicant father conceiving a child, Z, with a third party egg donor and using a surrogate mother in Illinois to carry the embryo. Upon the birth of the child, the father obtained a declaratory judgment from the appropriate court in Illinois to establish his sole parentage of Z, and in doing do, extinguished the surrogate birth mother's US parental rights over Z.
Upon the father’s return to the UK with Z, the father applied to the court for a parental order with the consent of the surrogate mother. In England and Wales the only two possible legal routes by which parental responsibility could be transferred to the father are by way of a parental order in accordance with s54 (1) of the HFEA 2008 or by way of an adoption order in accordance with s46 of the Adoption and Children Act 2002. A parental order is often seen by commissioning parents in a surrogacy arrangement as the “gold standard” for recognising their parentage in England and Wales. This avoids the need to engage their local authority and social services as would be the case when an application for an adoption order is made.
Unfortunately, the father’s application was refused due to the fact that s54 is available only to couples and does not extend and apply to a single parent. The legal representatives for the father had argued that
- such a decision would be inconsistent with a single person’s right to private and family life in accordance with Articles 8 and 14 of the European Convention of Human Rights;
- that s.54(1) should be “read down” in accordance with section 3(1) of the Human Rights Act 1998; and
- that the law and government policy was to enable single persons to be eligible to adopt; and that it was artificial, disproportionate and discriminatory to distinguish between adoption and surrogacy on the basis of the complexity or sensitivity of surrogacy.
In other words, if a single person was eligible to adopt a child why should he or she be prevented from applying for a parental order?
In his judgment, Mr Justine Munby drew comparisons between s54 and the law governing adoption orders. He commented that “the principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout." He further stated that in relation to "the crucially important question of who, for this purpose, can be a parent, this consistent statutory limitation on the ambit of the statutory scheme always has been, and remains, ..., a "fundamental feature", a "cardinal" or "essential" principle of the legislation, ...". He therefore concluded that “as a single parent, as a sole applicant, the father cannot bring himself within section 54(1) of the 2008 Act.”
It would seem, for the time being at least, that until a further challenge is made to this principle in England and Wales the only route to parental responsibility for any single parent commissioning the conception of a child(ren) through a surrogacy arrangement is an adoption order. It seems clear to us that there is an overwhelming need of an overhaul of our surrogacy laws in England and Wales to ensure that they are brought into line with other countries and recognise the ever changing structure and development of modern day families.
If you are considering surrogacy here in the UK or abroad and would like to discuss your legal position and need detailed advice on your legal parentage please call our Family Team directly on 0113 246 0622.
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