Single parent successfully challenges surrogacy law

Posted by Laura Bennett on
The Family Division of the High Court has given a landmark ruling regarding the law of surrogacy.

In order to obtain a legal status in relation to a child born using surrogacy, the 'commissioning parents' of the surrogacy arrangement have to apply for a Parental Order in relation to the child. When granted, the Parental Order transfers legal parenthood from the surrogate to the commissioning parents, and extinguishes the parental responsibility of the surrogate.

The current law provides that two people can make an application to the Court for a Parental Order. The two people making the application must be husband and wife, civil partners or two people living together in an 'enduring family relationship.' The application must be made within six months of the child's birth.

In a recent case, a child (known as 'Z') was born to an American surrogate mother using the commissioning father's sperm and a donor egg. The commissioning father returned with the child to the UK, but he was not able to apply for a Parental Order as he did not satisfy the criteria that there must be two applicants. As a result, he could not obtain parental responsibility for Z because the surrogate mother was still regarded as the child's mother. The commissioning father's only option appeared to be to apply to adopt Z. However, the commissioning father successfully challenged the law which insists that two people must make an application for a Parental Order. Sir James Munby, the President of the Family Division of the High Court, has declared that the existing legislation is incompatible with human rights law, as it discriminates against single commissioning parents. 

A Department of Health spokeswoman has said that they accept the judgement of the Court, and will be "looking to update the legislation on parental orders."

This is a fascinating development in the law relating to surrogacy arrangements, and it will be interesting to watch as the law is brought up to speed to reflect the evolving medical science.

About the Author

Laura is a Senior Solicitor in the Family team based in Oxford.

Laura Bennett
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