A senior High Court judge has ruled that UK law discriminates against single parents with children born through surrogacy who are seeking parental orders, and that UK law in this area runs against their human rights.
The applicant was a single father of a child born in the USA following a surrogacy arrangement using donated eggs. Upon returning to the UK with the child, the father was not considered a legal parent and was required to apply for a parental order to become the child's legal father and to receive a UK birth certificate.
However, unlike adoption, under UK law a parental order for children born via surrogacy can only be made by two people in a marriage, civil partnership or long-term relationship. The father sought to challenge those provisions and initially asked the courts to interpret the law in a way that would be compatible with his human rights.
In September 20312, the High Court ruled that the legislation could not be 'read down' to enable an application made by one person but that the child would remain a ward of court and placed him under the care of his father (see BioNews 819). The father then sought a declaration of incompatibility under the Human Rights Act 1998.
In a ruling last week, the President of the Family Division, Sir James Munby, held that provisions in the Human Fertilisation and Embryology (HFE) Act 2008 that permit only a couple to make an application for a parental order were incompatible with rights under Article 14 of the European Convention on Human Rights that protects against discrimination, when taken with the right to family life under Article 8.
The provisions were discriminatory in preventing the father from obtaining a parental order on the sole ground of his status as a single person, as opposed to being part of a couple, the judge explained.
The Secretary of State for Health had already conceded that sections 54(1) and (2) of the HFE Act 2008 were incompatible and the judge was asked by all the parties involved to make a declaration on the terms sought. Although Lord Justice Munby was prepared to do this, he refused to pass comment on how the law should be changed or the merits of a Parliamentary review of the provisions and further law reform.
Natalie Gamble, who represented the father, explained that only Parliament can change the law regarding parental orders but that declarations of incompatibility were unusual. Of the 20 final declarations made, all but one have resulted in a change in the law.
'The UK has a proud tradition of taking a progressive approach to assisted reproduction and non-traditional families, and the current surrogacy laws are a glaring anomaly which fail to uphold our most fundamental values of safeguarding children's welfare', she said.
Others were critical of the decision for threatening traditional family models. Jill Kirby, a former director of the think-tank the Centre for Policy studies, told the Mail on Sunday: 'This judgment undermines the traditional family and the child's needs – the evidence shows that children will thrive much better with two parents caring for them. The Government seems to have abandoned the idea of promoting stronger families.'
The child's father said he was 'delighted' with the ruling. 'I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy.
'I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.'
The Government has not yet said whether it plans to introduce changes to the law in this area, Gamble added. Earlier last year a single father was allowed to adopt his biological child born through surrogacy after being unable to apply for a parental order (see BioNews 793).