The UK's Department of Health last week launched a consultation on the regulation of 'Parental Orders', which are used to transfer legal parenthood from a surrogate (and her husband or partner if she has one) to the couple who commissioned the surrogacy arrangement. In English law, the woman who gives birth to a child will always be its legal mother at birth, no matter how it was conceived. This has obvious implications for those entering surrogacy arrangements.
According to the current law, only married couples (in which one partner is also genetically related to the child) are able to apply for a Parental Order, however, new legislation extends this right to civil partners and also to parents (opposite and same sex couples) where there is no formal union, as long as they are 'living as partners in an enduring family relationship'.
However, new Regulations will be necessary to establish how the courts will grant Parental Orders in these new circumstances, and it is these that the consultation will focus on. The new Draft Regulations are supposed to bring the process for granting Parental Orders more closely into line with modern adoption law. The consultation concerns the content of the Draft Regulations, including ensuring certain factors are taken into account such as the welfare of the child, as well as setting out the legal status of the child who is the subject of a Parental Order, the powers of the court and provisions about the Parental Order Register.
Last week, parts of the Human Fertilisation and Embryology (HFE) Act 2008 that relate to parenthood came into force, allowing women in same-sex relationships to be named on their child's birth certificate, giving them the same rights as heterosexual couples conceiving through donated eggs or sperm. This means that from now on, the civil partner of the woman who gives birth will automatically be regarded as the second legal parent, unless they can show that they did not give consent to the procedure. However, at present only lesbian couples and single women can benefit from the changes to the law. When the new Parental Order Regulations come into force it will also be possible for male couples who have had a child through egg donation and surrogacy to both be named as parents on the child's birth certificate, by granting them a Parental Order to transfer legal parenthood.
The Draft Regulations are specifically not intended to open up any other debate on surrogacy or its regulation, despite the fact that the new HFE Act and the consultation process leading up to it did little to re-address the issues that surrogacy brings up, including those relating to parenthood. Natalie Gamble, who jointly set up Gamble and Ghevaert LLP, the first law firm in the UK to specialise exclusively in fertility and parenting law, commented previously in BioNews that the law changes may not address problems around surrogacy arrangements entered into abroad. She wrote: 'What many patients do not realise is that if they are domiciled in the UK, UK law applies to them regardless of where the conception occurs. This can result in the unfortunate situation where, at birth, neither the surrogate nor the intended parents are legal parents under their own home systems of law and the child is born an orphan. Any foreign birth certificate naming the English parents as the legal parents cannot be relied upon for UK legal purposes.'
The consultation will address the Regulations under which courts are permitted to grant Parental Orders. It will be open from 1 September until 23 November 2009. Information on how to respond is available on the Department of Health website (link below).