On November 29, 2017, a remedial order was sent to Parliament to change surrogacy laws for single parents. If the order passes, single mothers and fathers who have had a child through surrogacy will become full legal parents for the first time.The order comes as no surprise to those of us that follow reproductive law and surrogacy legislation, since in May of 2016, the President of the High Court Family Division, Sir James Munby, declared that the current laws are incompatible with the Human Rights Act. The Human Rights Act, which allows people to defend their rights in UK courts and urges public organizations to treat everyone equally with fairness, dignity, and respect, was passed in the UK in 1998. It can be used by anyone who is a resident in the UK.
Sir Munby’s opinion was a result of the 2016 “Re Z” case, in which a single father had a son through a U.S. gestational surrogate. The court ruled that UK law made the surrogate the only person in the UK who had parental responsibility, even though she was not a legal parent to the child in the U.S. Although the father was named a legal parent in the U.S., he could not get a parental order in the UK since he was single. The government has now agreed that the law was unfair and discriminated against the father.
In the UK, the law states that until the intended parents obtain a “parental order,” the surrogate and her spouse are the legal parents of the baby; this law is similar to the law in the U.S. The law requires the applicants of the “parental order” to be a couple, regardless of whether they’re married or living together as partners, so children born through surrogacy to single parents are technically legal orphans in the UK.
To become the legal parent of a child in the UK, the intended parents must apply for a parental order when they use a surrogate to have a child in order to transfer the legal rights from the birth mother to the intended parents.
The intended parents must meet several criteria to be granted parentage rights: be genetically related to the child, be married or civil partners or living as partners, the child must live with the intended parents, and the intended parents must permanently live in the UK, Channel Islands, or Isle of Man.
As of now, if neither intended parent is related to the child or if the intended parent is single, the only way to become have legal rights over the child is through adoption. Additionally, if the intended parents are from the UK and go abroad for surrogacy, they face issues when returning to the UK. The main problem is that the UK does not recognize any orders made in other jurisdictions, so the surrogate is still treated as the legal mother until the intended parents have a parental order. When the parents are returning to the UK with their baby they need to have a visa for their child while they go through the process of obtaining a parental order.
If the order made to Parliament is passed and the law is changed, it would mean that single mothers and fathers will have the same rights as couples to become their child’s legal parents and to get a birth certificate in the UK that reflects that. As long as the intended parent is the biological parent and meets other criteria, he or she may apply for the parental order. Parliament still has to pass the remedial order; which may likely be some time in 2018.
This is an incredibly important legal aspect of UK parent rights, that if changed, will change the landscape and future of surrogacy in the UK. This law could enable more families to grow through surrogacy, helping people have the children that they long to have but are unable to. If Parliament passes the order, it will be an example to other countries for how to approach laws regarding surrogacy and parental rights and at the most basic level, equal human rights.
