In a High Court decision today, the President of the Family Division has ruled that UK law cannot be stretched to recognise children born to single parents through surrogacy. Denying a parental order to a British single father being represented by the NGA team, President Munby said that it was clear that Parliament had intended surrogacy orders to be available only to couples and not single parents.
The case concerns ‘Z’, the biological son of a British single father. Z was conceived through a US surrogacy arrangement; a court in the US had already made an order confirming that the British father was legally the child’s only parent, in line with what everyone intended. The father brought his son home to the UK, and has cared for him in the UK ever since.
However, UK law treats the US surrogate (who has no biological connection with the child and never intended to be his parent) as the boy’s legal mother. In the UK she, rather than the father, has sole decision-making rights. The father therefore sought a parental order from the UK High Court to confirm his sole parentage and to give his son a UK birth certificate. Parental orders are commonly made by the UK family court in surrogacy cases (with around 300 granted each year) and are important orders for children which establish their lifelong identity as members of the family they are born into. However, the law says that an application must be made by two people who are married, civil partners or in a long term relationship. Single parents are not, on the face of it, eligible to apply.
The father therefore came to court with a big ask: that the court should read the law flexibly as if it said ‘one or’ two applicants. Lawyers for the father argued that the arrival of modern international surrogacy has made it practically possible for single fathers to conceive biological children on their own. The law should not deny their children legal recognition, and the court should take responsibility for evolving the law using its powers under the Human Rights Act. The discrimination against single parents also makes no sense given wider UK policy allowing single mums and dads to become parents through adoption and donor conception.
Natalie Gamble, the solicitor representing the father, said: “This is about whether the court can stretch outdated laws to recognise the modern families actually now being created, and to protect the children being born into them. UK law has come so far over the last 10 years in recognising non-traditional families and rightly so, since all the research shows that children thrive from high quality parental relationships, regardless of the number or gender of their parents. We want to see children being born through surrogacy to single parents being treated in the same way as children being born to couples.”
The father’s application was fully supported by the child’s guardian in the case, who had been appointed by the court to represent the child’s best interests and had conducted a welfare investigation into the father’s parenting abilities. The application was also fully supported by the US surrogate mother.
But despite the unanimous position of all involved, Sir James Munby said that the law was very clear in referring to the need for two applicants, something which had been expressly considered in Parliament in 2008; the discretion given to him by the Human Rights Act did not enable him to go behind that.
He may still decide to make a declaration that the law is incompatible with the family’s human rights (which would put pressure on Parliament to review the law) but that is yet to be considered. The case continues.
Statement from the father in the case
I am an educated professional who decided to start a family on my own. I was encouraged by friends and family and could not now imagine life without my amazing son.
In the US, it is straightforward for single dads to conceive through surrogacy and there is an established legal process for doing it which includes screening, psychological assessments, and legal advice for everyone involved. I wanted to do everything in an ethical and responsible way, and so took considerable time to research everything before I went ahead. Many British single mums can choose to conceive their own children because the donor laws act in their favour, yet single fathers face legal obstacles. My son is the centre of my life, and I am so grateful to the wonderful women who helped me conceive him. He will grow up knowing how special and loved he is.
I know that other UK single dads are conceiving children through surrogacy – I am not the first and will definitely not be the last. Given that there is no obvious route for sorting out the legal issues, most choose to live in legal limbo caring for children who are not fully theirs in the eyes of British law, yet are under US law. I made this application because I do not think that is good enough. I want the best for my son, and I want to help change things for him and for other families like ours. My family was planned and wanted, and has been assessed by the court welfare officer as thriving. There is no reason why my son should not have a UK birth certificate and a secure legal position like other children born through surrogacy.
Media coverage of today’s ruling:
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