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UK waits for law reform after genetic mother ineligible for legal parenthood

13 November 2017

By Sean Byrne

Appeared in BioNews 926

A woman has been denied legal parenthood of her surrogate-born child because she is single, despite being the genetic mother.

The child was born in early 2017 as a result of a surrogacy arrangement. The commissioning parents – who are also the genetic parents of the child – separated during the surrogate's pregnancy, and the father no longer wants to be involved in the legal proceedings or upbringing of the child.

The child has been cared for by the intended mother since the birth, but the surrogate is still considered the legal parent – a situation that neither woman wants. Under UK law (Section 54 of the HFE Act 2008), the woman who gives birth to a child is always considered the legal parent, and a parental order is required to transfer the legal parenthood when a baby is born to a surrogate. However current law only allows a parental order to be granted to a couple (married, civil partners or cohabiting) and the intended mother is now single, so she does not satisfy the legal requirement.

Thus the child has no legal relationship with his genetic mother who is raising him: his legal parents are the surrogate, and his genetic father who he has never met.

Mr Justice Keehan, hearing the case was not unsympathetic to the situation, but was bound by law. He explained that in a previous case (Re Z (A Child) (No.2) [2016] EWHC 1191 (Fam)) the President of the Family Division of the High Court declared the current law incompatible with the European Convention on Human Rights because the applicant in that case (a single intended father) was prohibited from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple (see BioNews 852). Following that declaration, Justice Keehan said, s54 has been under Parliamentary review, but the court cannot do anything until a remedial order is produced by government .

To explain why the change is so important to families, Justice Keehan quoted Sir James Munby, President of the Family Division: 'Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are… A parental order has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.'

In the meantime, the judge explained it would be inappropriate for the mother to adopt a child who is biologically her own. The child will remain a ward of court living with his mother as he had been since birth, the application for a transfer of legal parenthood will have to wait until such a time as s54 is changed to accommodate single parents.

RELATED ARTICLES FROM THE BIONEWS ARCHIVE

04 December 2017 - by Jennifer Willows 
A remedial order has been laid before Parliament which, if passed, will give single people the same rights as couples to become the legal parents of their surrogate-born children...

06 November 2017 - by Antony Blackburn-Starza 
A US surrogate has been united with her genetic child who she carried alongside the intended parents' embryo in an apparent case of superfetation... 
23 October 2017 - by Dr Mary Yarwood 
A surrogate from Queensland, Australia has had her parental rights removed after a judge decided it was in the baby's best interests...
27 March 2017 - by Jennifer Willows 
A woman in Singapore has been awarded damages after an IVF clinic fertilised her eggs with a stranger's sperm instead of her husband's...
19 September 2016 - by Antony Blackburn-Starza 
A woman who adopted her child, after being told that an administrative error during fertility treatment meant that her legal parental status was in doubt, has been granted legal parenthood by the Family Court...
08 August 2011 - by Antony Blackburn-Starza 
The UK's High Court has awarded legal parenthood to a deceased father of a child born through a surrogacy arrangement in India....

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Published by the Progress Educational Trust

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