This is not a surprise. We have been waiting for this since the President of the High Court Family Division made a formal declaration that the current law was incompatible with the Human Rights Act in May 2016. His declaration was a result of the case of Re Z (2016) in which we represented a single father with a son born through surrogacy. The court ruled that the current law made the US gestational surrogate who carried the child (who was not a legal parent under US law) the sole person with parental responsibility in the UK, and that the father could not be granted a parental order because he was single. Even the government agreed that the law discriminated unfairly against him.
Declarations of incompatibility are incredibly rare (only 20 have ever been made) and Parliamentary guidance makes clear that the government is expected to take quick action to remedy any breach identified. Since in this case the government agreed in court that the law was discriminatory, it is a shame that it has taken so long to change the law. However, we of course welcome today’s move wholeheartedly, as does our single father client who is eagerly awaiting the final court order which will finally give him legal responsibility for his son.
What difference will the law change make for single parents conceiving through surrogacy?
To be clear (and notwithstanding tabloid headlines), this is not about whether single parents should be allowed to have children through surrogacy. UK law has never prohibited single parents from conceiving children. What this is about is the legal status of parents who have already conceived a child through surrogacy.
Under UK law (and no matter where in the world the child is born or who the biological parents are) the surrogate and her spouse are the legal parents of a child born through surrogacy until the intended parents obtain a ‘parental order’. The catch is that the applicants for a parental order must be a couple – either married or living together as partners in an enduring family relationship. For years, that discrimination has left children born to single parents – like the little boy in this case – as legal orphans. They are not the children of the surrogate in the country where they are born, and their biological parent has no legal responsibility for them in the UK. That is very hard to reconcile with the notion that UK family law’s founding principle is the welfare of children. It is also illogically out of date given that the law recognises a range of different family forms in the modern UK.
So has the law changed for single parents today?
The law hasn’t changed just yet, but this is the start of the formal process to change it. If the remedial order is passed by Parliament, it will mean that single mothers and fathers through surrogacy (provided they are biological parents and meet the other criteria) will be able to apply for a parental order. Ultimately they will have the same rights as couples to become their child’s legal parent and to obtain a UK birth certificate for their child which reflects that
So when will the law for single parents through surrogacy actually change?
We don’t yet know for sure, but it is likely to be some time in 2018. The remedial order will now be considered by Parliament over two periods of consideration (during which amendments can be proposed). The clock has now started ticking for the first 60 day consideration period, during which the Joint Committee for Human Rights will consider and scrutinise the order. Once this period has elapsed, the government will consider any proposed amendments, and the final order will then be laid for a further period of time. It is difficult to say how long this process will take (and whether a Parliamentary vote will be needed) but we would estimate between 4 to 6 months from here. We will be closely involved in this process, and will be reviewing the detail of the remedial order to raise any problems or issues.
What about single parents who already have children through surrogacy?
Parents are normally expected to apply for a parental order before their child is six months old, but the remedial order includes a specific retrospective provision enabling parents with children older than six months to apply. In practice, there will be a six month window of opportunity for existing parents to apply once the law formally changes, and we are keeping people posted as to when the application window will open.
What can you do to help push things forward?
Given the delay to date we are keen to do all we can to push things forward. We have represented more than 40 single parents over the years and are assembling some personal stories to send to the Committee to emphasise why this law change is urgently needed. If you are a single parent through surrogacy (or want to be) and would like to add to our narrative, please feel free to email us to tell us what the proposed change means to you and your child, and what challenges and anxieties you face without secure legal status.
You can also check to see if your MP is on the Committee. If so, please consider writing to them to tell them why this issue is so important, or even better make an appointment to go and see them in their constituency surgery and tell them face to face. If your MP is not on the Committee, write to them anyway and ask them to urge the Committee to deal with this as a matter of urgency. You can check who your local MP is here if you don’t know.
How can you stay up to date?
We are already keeping many single parents updated on progress. If you would like to be added to our list, please email us at email@example.com and we will email you with any further updates.
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