The Department of Health and Social Care releases consultation to enable a single person to apply for a Parental Order

Posted by Amy Fullerton on
When a child is born through surrogacy, the intended parents of the child may apply to the court for a parental order which then transfers legal parenthood of the child to the intended parents. Currently, it is only couples who can apply for such an order, but a consultation was released on 8 March 2018 on the intention to extend this to single parents.

Surrogacy as a method of conceiving a child is being spoken about more and more. Those of you who are fans of the Archers will have joined Adam Macey and Ian Craig on their surrogacy journey over the past many months. Currently, it is only couples who are permitted to apply for a parental order, but a consultation has recently been released on the government's intention to extend this to single parents. A summary of this document is set out below.

One key part of having a child through surrogacy is that when the child is born, it is the surrogate (and her partner if she is married or in a civil partnership) who has legal parenthood of the child. Once six weeks has elapsed since the child's birth, the intended parents are entitled to make an application to the court for a parental order, which, if granted, will transfer legal parenthood to the intended parents and the parental rights of the surrogate and her partner are extinguished. In order for the court to grant a parental order, there are certain conditions that must be met and currently, one of those is that the intended parents must be married, in a civil partnership or living as partners in an enduring relationship.

As the law presently stands, an individual seeking to acquire legal parenthood of a child born through a surrogacy arrangement would have to adopt the child. The rationale behind this was purportedly that the fuller assessment carried out in adoption proceedings was more likely to ensure that a person on their own was able to cope with the demands of bringing up a child. However, in 2015 a UK resident, single father, who had a child through surrogacy in the USA applied for a parental order and was rejected on the basis that he was not applying as part of a couple. This decision was challenged under the Human Rights Act and in May 2016 the Family Court made a declaration that the provision in the Human Fertilisation & Embryology Act 2008 which enabled couples, but not a single person, to obtain a parental order following surrogacy was incompatible with Article 14 of the European Convention on Human Rights. Article 14 prohibits discrimination in the enjoyment of Convention Rights (in this case the right to respect for private and family life in Article 8) on the grounds of a person's status, and it was accepted that this could include a single person in this context.

The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 amends the primary legislation to enable a single person to apply for a parental order, subject to certain conditions. This order was laid in parliament in November 2017 for scrutiny and it is intended that it becomes law in 2018, subject to Parliament's views.

The Department of Health and Social Care's consultation documentation can be accessed here.  The deadline for responding to the consultation is 20 April 2018.

Please contact a member of our family team if you would like legal advice in respect of a surrogacy arrangement.

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Amy is a Solicitor in the Family Law team, based in London.

Amy Fullerton
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