Under UK law, the woman who gives birth to a child is automatically considered the child's legal parent, no matter where the birth takes place. A parental order is the means by which legal parenthood is transferred from the surrogate (and her spouse or civil partner, if she has one) to the intended parent or parents.
The legislation that established parental orders (Section 54 of the Human Fertilisation and Embryology Act 2008) only permitted couples to apply for parental orders, leaving the children born to single people in legal limbo. This led Sir James Munby, then president of the Family Division of the High Court, to declare the law incompatible with human rights legislation in the case Re Z in 2016 (see BioNews 852).
Sir James Munby explained in the case why legal parenthood is so important: '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.'
A remedial order was drafted and laid before Parliament in 2017 (see BioNews 929), and after several revisions it was approved by both houses and signed by the minister in December 2018, coming into force on 3 January 2019.
Applications for parental orders must normally be made in the first six months after birth, but there will be a one-off six-month period in which families who were unable to apply before can do so retrospectively.
The new law will not help couples or single people whose child was created using both donor eggs and donor sperm (sometimes called double donation), as parental orders are only available where a genetic link exists between the child and at least one intended parent.