Until very recently, U.K. law discriminated against parents through surrogacy who were single. However on 3 January 2019 new law came into force making parental orders (which give parenthood to the intended parents after the birth and extinguish the status of the surrogate) available to single parents as well as to couples. To apply, single parents need to be their child’s biological parent, which we know continues to exclude some single parents, particularly single mothers. However other creative legal solutions may be available depending on your situation.
The law change followed a successful campaign to win rights for single parents conceiving through surrogacy which we fought over the past 10 years. In 2008 (when parental orders were opened to same-sex and unmarried couples) Natalie drafted an amendment to the law covering single parents too. This was debated in Parliament, but unfortunately blocked by the government which said that government policy was to allow surrogacy only for couples. We continued to campaign for change and in 2015/2016 represented the single father in the case of Re Z which challenged the law on human rights grounds. Ultimately the President of the High Court Family Division made a formal declaration that UK surrogacy law was incompatible with the Human Rights Act as it discriminated against single parents and their children. To remedy the breach of human rights law, a remedial order was introduced to Parliament in November 2017, which was finally passed in January 2019.
Under the new law, there is retrospective provision for single parents who already have children who have not until now been able to apply - instead of applying within six months of the birth they can apply within six months of the law changing. The window of opportunity for making a retrospective application will close on 2 July 2019 - applications after this will still be possible but more complicated.
You can read more about the history of how this law change has come about from our blog https://www.ngalaw.co.uk/blog/tag/remedial-order/
If you are conceiving with a surrogate, whether you will be your child’s legal father when he or she is born depends on your surrogate’s marital status and where conception takes place, as well as biology. Find out more about UK parenthood law.
Most of the single dads we work with go overseas for surrogacy, usually to the US or Canada. If your child is born outside the UK, you will need to navigate British nationality and immigration law succcessfully to ensure your child has a permanent right to live in the UK.
You should also take steps to secure your legal status in the UK (since UK law treats your surrogate as the mother, and her spouse as the other parent, and may not not give you parental responsibility, even if you are the legal father). In most cases a parental order will be the appropriate application.
The surrogate, rather than you, will be the legal mother of your child (even if you are the biological mother and even if you are named as the mother on a foreign birth certificate). Find out more about UK legal parenthood. If your child is born outside the UK, find out more about securing British nationality and the documentation you will need to travel home.
The law change will make things easier for single mothers who need the help of a surrogate to conceive a child, but only if they are able to use their own eggs (or sperm if they are transgender). We are also campaigning for wider reform to enable single mothers to be able to be recognised as a sole legal parent after surrogacy if they conceive with donor eggs.
Have we answered your question? Would you like advice on your personal circumstances?
Email us at email@example.com or call on 020 3701 5915 and we will explain how we can help.