The father, Kyle Casson age 27 (who has subsequently spoken to the Daily Mail about his story), is a single gay man who decided to become a parent after careful thought and with the support of his family. He came to NGA for specialist legal advice at the start of his journey, and then spoke to the media about the legal discrimination against single dads conceiving through surrogacy. He was subsequently approved for fertility treatment, having also been cleared by a clinic welfare of the child and ethics assessment. He then conceived his son Miles with his own sperm and an egg from a donor (with the donor being identifiable after the age of 18). When the family member who had agreed to be his surrogate could not proceed for medical reasons, Kyle’s mother stepped in and offered to carry his child for him. She was counselled and medically cleared, and the treatment went ahead.
Legally Kyle’s son’s parents were Kyle’s mother and her husband, since the law says that the woman who gives birth is the legal mother, and her husband is the legal father. However, this was essentially a fiction since neither was a biological parent and neither had ever intended to act as the child’s parent. It was always the intention that Kyle, biological father, would be the baby’s parent and carer.
Issues around legal parentage after surrogacy are usually sorted out via a parental order, which is the post-birth UK court order designed for surrogacy. Intended parents apply to the family court, and on the making of a parental order the original birth certificate is cancelled and a new ‘correct’ birth certificate is issued. However such orders are only currently available to couples, and not single parents. That is why Kyle instead applied for adoption, as the only other legal means by which parenthood could be permanently reassigned to him to recognise his biological paternity.
Today’s press coverage of the case has focused on the ‘mother who gave birth to her son’s child’ but this misses the point. Family surrogacy arrangements are not uncommon – we have certainly dealt with many cases where a sister, sister-in-law, mother or cousin has acted as a surrogate. Indeed such arrangements are actively incentivised by UK law, given the legal restrictions on advertising and brokering surrogacy arrangements between strangers. The unusual feature of this case is not the family context, but the fact that the intended father was single, and therefore unsupported by the law.
We welcome the court’s decision to make an adoption order, which is clearly child-focused and finds a way around the problem for Kyle and Miles. However, it is appalling that single parents who have a child through surrogacy (and their children) do not have access to the legal remedy designed for surrogacy – parental orders. What this means is that their children can never have a UK birth certificate which reflects their true parentage, and instead must either become adopted children, or live in limbo without resolved legal status.
In this case adoption offered an alternative remedy which resolved the complex legal issues – that is the novel legal issue and the reason the case was published. But as the judge highlighted, adoption may not provide such a good solution in other situations – for example where the surrogate is not a close relative or where the child is born abroad. It is an ill fit, a square peg for a round hole. It is also ludicrous that a biological parent must go through the full rigours of an adoption process to be recognised as a parent of their own child.
We work with many single dads through surrogacy who (like other parents through surrogacy) are people who want the natural experience of parenthood and give careful thought to planning a much-wanted child. Many end up living under the radar of the law, without properly recognised legal parentage, because the law is so complex and difficult. This is just one of the many problems of current UK surrogacy law, and why a review is so long overdue and desperately needed.
We will get there, but in the meantime congratulations to Kyle on his continuing courage and persistence – what a lovely dad you make!
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