Under the current law, only couples can apply for a parental order to fully secure their parentage after surrogacy. While it has never been illegal for UK single parents to conceive with the help of a surrogate, the lack of legal remedy afterwards has long meant that they are not securely recognised as sole legal parents. That is now set to change.
The government’s decision to change the law follows the High Court ruling in the case of Re Z (No. 2) (2016) in which we represented a single father through surrogacy and won a formal declaration from the President of the High Court Family Division that the current law discriminates unfairly against single parents and their children, and is in breach of the Human Rights Act.
Lady Chisholm, speaking to the House of Lords on behalf of the government on 14 December, said:
“[We have decided] 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.”
What is a remedial order?
A remedial order is a special fast-track procedure by which the government can, if it chooses, amend law which has been declared by the High Court to be incompatible with human rights. The remedial order is laid in Parliament for two periods of consideration (during which amendments can be proposed) and it then takes effect. It is therefore the fastest and simplest way the law can be changed to permit single parents to apply for parental orders.
When will the law actually change?
It is not yet clear when the remedial order will be introduced to Parliament. Lady Chisholm said:
“The House will recognise that there are complexities and a considerable number of consequential amendments to other pieces of legislation, so our current plan is that the remedial order will be introduced to Parliament in early 2017.”
However, the answer to a written question raised in the House of Commons yesterday indicated that it may now be introduced in May. We will keep you all updated as we know more.
Once the remedial order is introduced to Parliament, we expect the process to take at least 4-6 months before single parents can actually apply for parental orders. That means that the earliest single parents can apply is likely to be late summer 2017, but there is no definite timeframe yet and it could be longer.
Who will be able to apply?
Although we have not yet seen the draft remedial order, we have been told by the government that it will enable single mothers and fathers who are the biological parents of children born through surrogacy to apply for parental orders, subject to the same conditions as apply to couples (see here for more information about parental orders).
The government has specifically told us that the changes will be retrospective, which means that existing single parents should be able to apply even if their children are more than six months old. However, there may be a short window of opportunity if – as we anticipate – the legal changes mirror the 2008 changes permitting to same-sex and unmarried couples to apply for the first time (when there was a six month ‘catch up’ window after the law taking effect during which existing parents could apply). Although there is now some scope for judges to extend application deadlines, it is important for existing single parents to keep a close eye on the progress of the changes to make sure they do not miss their chance to secure their sole legal parentage fully and permanently.
We have been contacting all our clients who are affected individually. If you are not an NGA client but are a single parent with a child born through surrogacy and would like to be added to our list of people to be kept updated, please do get in touch at firstname.lastname@example.org and we will be happy to keep you posted as things move forward.
Our team and everyone who worked on the case (including Elizabeth Isaacs QC and Adem Muzaffer at St Ives chambers) are incredibly proud to have got to this point, and so thrilled for our very brave single father client whose willingness to put his head above the parapet has changed UK law. With an existing application before the court he will, quite rightly, become the very first UK single parent to be given a parental order.
Tags: Elizabeth Isaacs QC, High Court, international surrogacy, parental order, Re Z, Re Z (No. 2) 2016, remedial order, single dad, single father, Single mother, single mum, single parent, surrogacy law, surrogacy solicitor, UK surrogacy