Single parents granted access to Parental Orders in surrogacy cases

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It is now possible for a single parent of a child born through surrogacy to have a Parental Order made by the Court, providing for that child to be treated as the legal child of that single parent. This follows an amendment to the Human Fertilisation and Embryology Act 2008 (HFEA 2008) made in December 2018.

Under the previous Human Fertilisation and Embryology Act 2008 (HFEA 2008), an application for a Parental Order could only be made by two people who were married, in a civil partnership, or living as partners in an enduring family relationship. Consequently, single parents faced the heart-breaking reality of being unable to get a Parental Order for a child that shared a genetic link with them – effectively meaning that their parental rights were not legally recognised.

In the place of a Parental Order, single parents previously had to either adopt their own child, apply for a private law order to confirm the child’s living arrangements (that still did not legally recognise the parent/child relationship, or remove the legal parentage of the surrogate); or apply to make their child a ward of the Court, necessitating the Court’s input for decisions such as changing schools, leaving the country, or changing the child’s name.

In the case of Re Z (A Child) (No.2) in 2016, a single father was applying for a Parental Order for his child born to a surrogate Mother. The Supreme Court ruled that the wording of the HFEA 2008 was incompatible with Article 14, the Prohibition of Discrimination, taken in conjunction with Article 8, the Right to Respect for Private and Family Life, of the European Convention on Human Rights. Consequently, it issued a Declaration of Incompatibility, strongly recommending that the HFEA 2008 should be amended.

More than two years later, a Remedial Order has finally been made, thus allowing single parents the right to apply for a Parental Order, provided that they do so within six months of the birth of the child. In recognition that many single parents will have missed this deadline due to the slow progress on the issue, the Remedial Order also included a provision that historic Parental Orders could be applied for up to six months following the date on which the Remedial Order comes into force.

The Remedial Order finally addresses the previous injustice facing single parents, and represents a very positive development in the complex and sensitive area of law relating to children born to surrogate mothers.