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Single parent surrogacy – Are changes imminent? Remedial order goes to Parliament

Happily, we no longer live in a society where there are mainstream stigmas attached to family structures that differ from the traditional, nuclear model of a mum, a dad and the kids. Same sex or single parent families, for example, are now widely recognised, accepted and celebrated. In fact, recent statistics show that 25% of families are now headed by a single parent.

The law relating to single parents: adoption vs. surrogacy

This modernisation is reflected, in part, in law. For example, it is well established that single parents in this country are in principle able to adopt a child if they wish to do so.

The current law on surrogacy, though, is still lagging behind the times. Parental orders – which transfer legal parenthood from a surrogate to the intended parents of a child – are still not available for single applicants.

It is quite a stark contrast: if the law has no qualms with a single parent adopting a child, why not allow that same individual access to a parental order through surrogacy? This is particularly surprising as he or she would also be the child’s biological parent in the latter case. (The current criteria for a parental order require one or both of the applicants to be genetically related to the child. Under the terms of the draft remedial order, this will continue to apply to single applicants as well).

Progressing to reform

In the landmark case of Re Z (A Child) (No 2) (2016) [2016] EWHC 1191 (Fam), the High Court made a declaration of incompatibility between the the current law on surrogacy and the European Convention of Human Rights. Every person should have the right to a private and family life, and that right should be applied without discrimination on any ground (including, therefore, relationship status).

That is a rare and noteworthy declaration. And a much needed one. In light of this, a remedial order was proposed (i.e. a Parliamentary procedure which allows for legislation to be fast tracked in order to remedy the incompatibility.)

Before the remedial order materialised, another single Applicant for a parental order, represented by JMW, brought her case to the High Court in M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam). This case echoed the Court’s sentiments in Re Z and emphasised the urgency for reform.

Following the case law, the Government finally sent the long awaited remedial order in draft to Parliament to consider in November 2017.

What now?

Parliament will now need to consider and debate the draft remedial order. The case for change is a really strong one, particularly given how unequivocal the court has been about the difficulties with the current law. The upshot is that a widening of the law to include single applicants is likely, with those changes likely to come in 2018 – so watch this space.

In the meantime, it is always sensible for anyone hoping to start a family through surrogacy to obtain specialist legal advice. If you are considering doing so, we would be more than happy to help. Please feel free to contact our family team on 0345 872 6666 or email me directly