Law Society Gazette – Surrogacy order ends legal limbo for single parents
The Times – Single father wins right to bring up child
To mark today’s law change, we wanted to reflect on our campaigning journey of the last ten years.
How did our campaign to change the law for single parents start?
It all started in 2008 when, as part of making UK fertility law more inclusive, the Human Fertilisation and Embryology Bill 2008 proposed broadening who could apply for a parental order from just married couples to married, unmarried and same-sex couples. Single parents remained excluded so, through her work as part of a stakeholders’ group supporting progressive reform, NGA Law founder Natalie Gamble proposed and drafted an amendment to the Bill which would have included single parents too. Her amendment was tabled by Dr Evan Harris MP when the Bill was in Committee, but not pursued when it became clear the government did not support it. On behalf of the government Dawn Primarolo MP said:
Surrogacy is such a sensitive issue, fraught with potential complications such as the surrogate mother being entitled to change her mind and decide to keep her baby, that the 1990 Act quite specifically limits parental orders to married couples where the gametes of at least one of them are used. That recognises the magnitude of a situation in which a person becomes pregnant with the express intention of handing the child over to someone else, and the responsibility that that places on the people who will receive the child. There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.
There was no evidence basis for such a statement, but it was clear that discrimination against single parents was government policy rather than oversight.
At both NGA Law and Brilliant Beginnings we continued to help single parents through surrogacy as we have always done. The lack of availability of parental orders hasn’t stopped single mums and dads having children through surrogacy. It has, however, made things harder and restricted the legal recognition of their families. All but two of the single parents we have worked with have had to go overseas to find a surrogate and almost all have then lived under the radar, without parental responsibility and with their surrogate remaining their child’s legal mother in the U.K., hoping that no one would ever question their authority to parent. We have shared their frustration about how unfair and discriminatory the law was.
A case that opened a chink of light
Then in 2014 the President of the High Court Family Division made a surprising ruling about parental orders – he said that although the law said parents ‘must’ apply within six months of the birth, Parliament hadn’t really intended a hard deadline and the court could make a parental order outside the statutory timeframe. We immediately wondered whether there might be flexibility for single parents too – if ‘must’ didn’t mean must, then perhaps two applicants could mean one. So we went to the barrister who had argued the deadline case – Elizabeth Isaacs QC. A passionate defender of non-traditional families with unending energy for pushing boundaries, she wanted to help us challenge the law.
Finding the right single parent to do this with us
We went looking for a single mother or father who would take the case with us. At the time we had four single dads with babies due or just born and we pitched our idea to all of them. We would have been happy to run a collective case, but ultimately just one of them agreed to proceed, a dad with a son (baby Z in the reported judgment) just born through a gestational surrogacy arrangement in the US. He had real courage in being the only parent willing to put his head above the parapet, and has been a joy to work with, keeping us all entertained with his wicked sense of humour all the way through to the end.
What happened in the High Court
So in February 2015 after Z was born we applied for a parental order knowing his dad wasn’t eligible and we asked the President of the Family Division Sir James Munby to rule that the existing law could be read flexibly, just like it had in relation to the six month deadline. But in September 2015 after several hearings (and a welfare report which said a parental order was clearly in Z’s best interests) the judge said no – the government had said explicitly to Parliament in 2008 that it intended to exclude single parents, and that limited how far the court could go. Ironically, it was Natalie’s work in 2008 which tripped us up.
But we didn’t give up. We made a further application, asking the judge to rule that, if he couldn’t interpret the law creatively, he should instead rule that the existing law was incompatible with the Human Rights Act 1998. We asked him to find that the law discriminated – without justification – against a group of people (single parents) on the basis of their status and that was contrary to rights protected by the European Convention of Human Rights.
As we were now challenging the law itself, the government was joined to the case, and the initial statement filed on behalf of the Secretary of State for Health indicated that the government intended to defend the law and to argue that surrogacy law could and should exclude single parents. We assembled our evidence in response, including lengthy statements and statistics from leading surrogacy law experts in the US, Canada and Australia and from Professor Susan Golombok at the Centre for Family Research at Cambridge University, all of whom generously gave their time and expertise to help us demonstrate that there was no rational justification for excluding single parents from parental orders. The court bundles were enormous – among the biggest we have ever created – and, with Liz Isaacs QC and her colleague Adem Muzaffer, we worked on our legal arguments concerning human rights and the reach of the court’s powers to challenge Parliamentary statutes.
We were set for a trial over several days, but just three days before it was due to start we unexpectedly received an email from the government’s lawyers saying that the government had decided to concede to the court making the declaration of incompatibility. The government had accepted that the law was discriminatory and that it needed to be changed. We couldn’t believe it. We were mid bundle creation, our whole team up to our knees in paper, and we just downed tools and cheered.
So, with the agreement of all parties in the case, the President of the Family Division made the declaration of incompatibility on 16 May 2016, saying that U.K. surrogacy law discriminated against single parents and their children in breach of human rights principles. Human rights declarations like this are rare (this was only the 19th ever made) and they create an expectation from Parliament that the law will be changed. And so we waited for a government announcement that the law would be changed. Finally on 14 December 2016 the government announced via a speech in the House of Lords that it would be changing the law by ‘remedial order’ – a special fast track way of changing the law without a full Parliamentary process where a declaration under the Human Rights Act has been made.
The remedial order – law change in Parliament
We then waited for the draft remedial order itself, which was finally sent to Parliament to be scrutinised by the Joint Committee on Human Rights on 29 November 2017. But the first draft was not good enough – instead of simply allowing biological parents to apply on their own it contained a complex definition of what it meant to be single which would have excluded some parents in more complex relationship situations (for example those married but separated or living with a new partner) from being able to apply. We raised this problem, having been invited to give submissions to the Committee, and the JCHR agreed. It issued a strongly worded report recommending a redrafting without any further delay in March 2018 and Natalie subsequently wrote a piece for Bionews explaining what was happening and urging the government to pay heed.
The government again conceded, and finally on 15 November 2018, sent a revised draft to Parliament which was much more inclusive. This was approved by the JCHR and subsequently timetabled for brief debates in the House of Lords (12 December 2018) and House of Commons (19 December 2018). It was signed by the Minister on 20 December 2018 and comes into force 14 days later – that is today, 3 January 2019.
What this means
So here we are, after a long campaign and a huge amount of work from a lot of people, very proud to say we succeeded in changing the law, and that a new section 54A comes into force today which allows single biological parents of children born through surrogacy to apply for a parental order to secure their parenthood, obtain an appropriate U.K. birth certificate, make their children British and secure rights to surrogacy leave and pay in the first months of their children’s lives.
When we started this journey with our brave single client, his son was only just born. Z is now 4 years old, a bright and chatty little boy who loves cake and trains and entranced our whole team when his Dad brought him for tea. We can’t wait to take his case back to court later this month to get the first ever parental order made in favour of a single parent. Z and his father deserve to celebrate, not just for themselves but for all the other families who will in the future benefit from their courage. We will get the bubbly chilled and ready.
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