Parental orders available to single applicants

17th January 2019 Family Law

At last! After a very long wait, legislation is now in place allowing single applicants to apply for a parental order following the birth of a child through surrogacy.

Previously, only joint applications from couples in a relationship akin to marriage were allowed. This created an anomaly whereby a person whose eggs or sperm had been used to conceive an embryo could not become legal parent of their own genetic child unless they applied as part of a couple. This ruled out those who were electing to become single parents by choice or whose spouse/partner did not fulfil other legal requirements from obtaining a parental order after a successful surrogacy arrangement. This did not affect the day to day care of children caught in this situation but it had the potential to create a mismatch between the position on the ground and the legal position ‘on paper’, which could have implications in matters such as inheritance and immigration status, as well as a profound emotional impact.

In 2016, the President of the Family Division, decided a case brought by a single father who was unable to obtain a parental order in relation to his biological child. The President made a “declaration of incompatibility„, a formal notification to parliament that one of its laws breaches an individual or group of individuals’ human rights. Our JMW surrogacy team have first-hand experience of the difficulties this gap in the law created in M v F & SM (Human Fertilisation and Embryology Act 2008) [2017] EWHC 2176 (Fam). Here, the court made a wardship order to provide a secure legal structure for the child rather than a parental order because the intended parents were no longer a couple when the child was born.

Eligible single applicants who wish to obtain a parental order in respect of a child born before the new legislation came into force have a six-month window (ending at the beginning of July 2019) in which to apply for a parental order.

The work of bringing about a modern surrogacy law is only just beginning, with a Law Commission consultation expected this spring. However, this latest reform represents a much-anticipated, much-needed closure of a gap in the law, which had the potential to cause real difficult for a growing number of families.

To speak to our specialist team on how we can assist please do not hesitate to get in touch.

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Cara Nuttall is a Partner located in Manchester Londonin our Family department

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