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New law set to give single parents through surrogacy the same rights as couples
A change in law regarding Surrogacy will allow single people to become parents via surrogacy for the first time.
In order to secure parentage following surrogacy the intended parents must apply for a Parental Order. At present the Human Fertilisation and Embryology Act 2008 requires applicants for a Parental Order to be:
- Husband and wife,
- Civil partners, or
- Two persons who are living together in an enduring family relationship
There was no scope for single applicants and the problem this caused was highlighted in the case of Re Z (No. 2)(2016), which involved a single father though surrogacy. The inability of the Court to grant a Parental Order in this case, led to the President of the Family Division declaring that the current law unfairly discriminates against single parents, and is in breach of the Human Rights Act.
When speaking to members of the House of Lords Conservative Peer Baroness Chisholm said:
“[We have decided] the Government’s response to the recent High Court judgement that declared that a provision in the Human Fertilisation and Embryology 2008- which enables couples but not single people to obtain a parental order following surrogacy- is incompatible with the Human Rights Act. We will, therefore, update the legislation on parental orders to ensure that it is compatible with the court judgement”
Plans were announced for a ‘remedial order’ to ensure that single people could apply for parental orders on the same basis as couples.
A remedial order is a fast track procedure. Whilst we cannot be sure exactly when the law will be changed, we anticipate the earliest single parents will be able to apply is autumn 2017. Importantly, reports suggest that the change is likely to be retrospective, which means that existing single parents would still be able to apply even if their children are more than 6 months old.
We will of course keep you updated on any changes, in the meantime if you are considering surrogacy please get in contact