Recently, a British family court has ruled in the case entitled In the Matter of Z (A Child) that a single, genetic intended father in the UK cannot obtain a parental order stemming from his surrogacy arrangement with an unmarried surrogate in the United States. In gestational surrogacy matters, a Parental Order permanently transfers parental responsibility to the applicants (the intended parents). The surrogate must agree to the Parental Order, and once granted, all parental rights pass to the ‘parent’s’. The surrogate then has no parental rights over the child.
In this British case, the intended father remains the legal father, but he technically does not have decision-making rights as the surrogate considered the legal mother in the UK. According to well-known UK surrogacy lawyer Natalie Gamble, “Don't panic - this doesn't mean you can't help single fathers from the UK. As before, they need to be matched with unmarried surrogates. Their position is then a bit messy but not unworkable in practice… In real terms it is unlikely to raise day-to-day issues and if it does there are things that can be done, including adoption and lesser orders. The important thing is that they are properly advised to understand all this.”
Attorney Gamble goes on to say, “Although the outcome looks disappointing, it is not unexpected or particularly bad news. Applications like this are a two- stage process. As we don't have a written constitution, if we have laws that breach someone's human rights, we can make an application to challenge a law under our Human Rights Act. The court first has to consider whether it can 'read down' the law (i.e. interpret it in a way which meets human rights requirements). If that isn't possible, the court can instead consider making a declaration that the law is incompatible with human rights, and therefore needs to be changed. Declarations of incompatibility are rarely made, and put considerable pressure on Parliament to amend the law.
“The judgment on this case handed down yesterday is just a failure on the first leg, and not unsurprising given what we were asking the court to do (essentially imagine that the law said 'one or two' people where it clearly says 'two people'). The President did not necessarily disagree that the law was unfair or did not protect the child's interests adequately; at this stage, his decision was simply that it was beyond the remit of the court to change the law. The next stage is the real gameplay, when we can argue for a declaration of incompatibility which might prompt a legislative amendment.”
At Worldwide Surrogacy, we assist many British intended parents, straight and gay couples as well as single ones. One of the most important matters we discuss with our clients is that they must have counsel in their home country to assist them with the legal processes and procedures of returning home and establishing parental rights for themselves as well as citizenship for their children. We are aware of the UK Parental Order process and the documents that are necessary for this application. At Worldwide, we make sure that our intended parents from the UK return home with a complete dossier of original documents that they will need for this most important application for a Parental Order in their country.
