31 May 2016
Legal team for the father in Re Z (A Child) (No 2) Appeared in BioNews 853
Contrary to some of the press coverage, the ruling was not about whether single parents should have access to surrogacy. UK law has never prohibited single parents from conceiving through surrogacy, and in 2008 Parliament even debated single-parent reproduction and decided that there should be no discriminatory conditions placed on access to treatment. Access was not the issue. The issue was legal status and the availability of parental orders which regulate the parentage of children born through surrogacy.
Parental orders can only be sought after a child is born. They transfer parenthood, making the intended parents the legal parents and extinguishing (with her consent) the status of the surrogate mother and her spouse or civil partner. Once a parental order is made, the child is treated as though born to the applicants, and a birth certificate is issued confirming the child's identity in the intended family.
The problem was that section 54 of the Human Fertilisation and Embryology Act 2008 requires the applicants for a parental order to be 'two people' who are married, civil partners or two persons living as partners in an enduring family relationship. Sole parents may not apply. This is in stark contrast not only with wider assisted reproduction law but with the law in respect of adoption. A single person has been able to adopt a child ever since the first statute on adoption – the Adoption Act 1926.
This discrimination is what the Court declared to be a breach of the father and child's human rights. Although the father could in theory apply for an adoption order instead, why should he adopt his own biological son? Adoption is a convoluted and artificial solution, and it does not provide the optimum legal solution for a child born through surrogacy, failing to confirm the important legal, practical and psychological reality of the child's identity.
What the absence of a parental order means to Z
At the heart of this is case is a child, born through a recognised surrogacy arrangement in the USA by a biological, single father. Under US law the father is already the sole parent, and this is what all parties always intended. There is no dispute in this case, nor any welfare concerns.
The issue is that UK law treats the surrogate as the child's mother and the only person with parental responsibility for him. There is currently no-one in the UK, not even his biological father, who is able to exercise parental responsibility. These issues would normally be resolved by a parental order, but as a single parent Z's father cannot apply.
As a result of the legal limbo Z finds himself in, he has been made a ward of the High Court. This means that the High Court has ultimate responsibility for Z, although the Court has subsequently delegated the power to make a number of decisions in respect of Z's welfare to his father.
What a 'declaration of incompatibility' is, and what happens next
A declaration of incompatibility is a declaration by the Court that it considers the law to be incompatible with rights protected by the European Convention on Human Rights. They are important and significant decisions: only 20 have been made since the Human Rights Act 1998 came into force. In this case, the court has said that the terms of section 54 are incompatible with the Article 8 rights of the father and his son, when taken in conjunction with Article 14. In order words, the law discriminates against this family unfairly in a matter of private family life.
A declaration does not affect the validity of the law. However, a declaration forces Parliament to consider what steps are necessary to remedy the incompatibility in question. Although Parliament does not have to change the law, it has done after all but one of the previous 20 declarations of incompatibility. Parliamentary guidance on responding to declarations (issued by the Joint Committee on Human Rights) makes clear that declarations should be responded to 'effectively and rapidly' with a remedy which is 'swift as well as full' and a detailed plan set out within four months.
In Z's case, the Department of Health has said that it is 'looking to update the legislation on parental orders'. That is not surprising, given that the Secretary of State for Health, who was a party to the proceedings, ultimately accepted that the law was discriminatory and agreed to the court making the declaration. It is good news. It means that the law will likely be changed soon, so that children born through surrogacy to single parents will no longer be left stranded in legal limbo.
Z's father has bravely fought to remedy a longstanding discrimination in the law. He is not the first or only single parent through surrogacy, but he is the first to contest the position the law puts him in and to fight for his family to be recognised fairly and consistently with other families created through surrogacy. In every respect, the ruling is a triumph for children's best interests and common sense.