The Government is in the process of changing the law to allow single parents with a child through surrogacy to apply for a parental order. The Parliamentary Joint Committee on Human Rights has now given its response, welcoming the proposed changes in principle but raising 'significant concerns about the Government's drafting approach'. With the clock ticking on this long-overdue law change, the Government now needs to get this sorted quickly.
To explain the background, parental orders are the means by which UK parents who have had a child through surrogacy become legal parents. They are 'transformative' orders applied for in the six months after the child is born. They permanently extinguish the legal motherhood of a surrogate and make the child the legal child of its parents, at least one of whom must be a biological parent.
But there is a flaw in the system, which the Government is currently grappling with. Only couples – married or living as partners in an enduring family relationship – are eligible. At present, single mothers and fathers with biological children through surrogacy cannot apply for a parental order.
In May 2016, Sir James Munby, President of the High Court Family Division, declared this to be incompatible with the Human Rights Act. Declarations of incompatibility are rare and significant. Parliament expects the Government to remedy an incompatibility within four months of a High Court ruling. After some delay, in November 2017 the Government sent a draft remedial order – a special fast-track means of amending the law – to Parliament to amend UK surrogacy law and eliminate discrimination against single biological parents.
The Joint Committee on Human Rights has now responded to the remedial order and identified, quite rightly, that the current proposals do not completely remedy the problem the court identified. Instead, they risk replacing one type of discrimination with another.
The problem lies in the way the Government has sought to define single applicants. The proposed new law says that, to apply for a parental order, a single applicant cannot be in an enduring family relationship or be married unless they can prove a permanent separation. Presumably, the intention is that applicants in a relationship should apply for a joint parental order rather than a single one. The difficulty is that this will leave some biological parents still excluded from being able to obtain a parental order because of their relationship status.
Take, for example, a father who conceives a child through surrogacy as a single dad but meets a new partner during the pregnancy. He needs to apply for a parental order within the six months after the birth, but the fact he is now in an enduring family relationship means that he cannot apply on his own. His partner, who was not involved in the conception of the child, understandably may not wish to assume all the legal responsibilities of parenthood. If so, this means that the biological father cannot obtain a parental order at all.
As another example, take a married woman who decides to embark on a surrogacy arrangement after separating from her husband and conceives a biological daughter with donor sperm. During the six months after the birth, she tries a reconciliation with her husband. Again, she would not be able to apply for a parental order on her own, since she could not prove a permanent separation from her husband at the crucial time. She would be denied a legal relationship with her biological daughter if her husband did not wish to become a parent of a child who was not biologically his.
It may seem difficult to understand why the Government has drafted the law in this way. Did it intend to give a partner who has no biological connection and never intended to be the child's parent a veto over the biological parent's status?
The explanation may come from the Government having cut and pasted the categories of individuals and couples who can apply to adopt a child. But if so that misses the point that surrogacy and adoption are fundamentally different. It may be logical to require someone embarking on an adoption to be in a settled personal situation, but parental orders are retrospective rather than prospective. They confirm a biological and psychological connection that already exists.
The law, therefore, needs a more open definition of applicants, enabling all the children who are born through surrogacy to be included, without discrimination. That was, in essence, the whole point of the High Court ruling.
The simplest solution is for the Government to take out the unwieldy definition of single applicant, and simply allow one person who is a biological parent to apply for a parental order regardless of their relationship status. Alternatively, if the Government is worried that one partner may apply alone in order 'oust' the other as a parent, it could require the court to give an applicant permission to apply alone if he or she is in a relationship.
Whatever the solution, the Government needs to make up its mind quickly. The Joint Committee on Human Rights has also been critical of the delay resolving this discrete issue. There is still time for the statutory procedure to run its course so that the new rules come into force before Parliament disappears for its long summer break – but only just. With updated parental order regulations also needing Parliamentary approval, there is a very tight timescale.
It is important that the Government jumps on this. Real children are waiting, who deserve legal security in the care of the loving parents who conceived and are caring for them.