A remedial order has been laid before the UK Parliament which, if passed, will give single people the same rights as couples to become the legal parents of their surrogate-born children.
Under UK law, the woman who gives birth to a child is automatically considered the child's legal parent. In cases of surrogacy a parental order is required to transfer the legal parenthood to the intended parents. However, current law only permits couples to apply for parental orders.
'So single parents who had a child through surrogacy have been stuck in this gap where they're living with their child but they’re not formally their legal parent,' family lawyer Natalie Gamble told the Independent.
The law in question (Section 54 of the Human Fertilisation and Embryology Act 2008) was judged incompatible with human rights legislation by the president of the family division of the UK High Court in the case Re Z in 2016. In that case an 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).
However, judges do not have the power to change laws written in Acts of Parliament – so it has been up to Parliament to amend the law to bring it into line with the European Convention of Human Rights. In the meantime, more children have been left in legal limbo as judges were powerless to grant parental orders (see BioNews 926).
Sir James Munby, president of the family division, explained in Re Z the importance of having the correct legal parent(s): '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.'
Once the order is passed by Parliament – expected to be in 2018 – it will come into force within two weeks. It will apply to future applications for parental orders, but there will be a one-off six-month period in which families can apply retroactively if they were unable to do so before. Applications must normally be made in the first six months after birth.
'We’re really glad these children will not be left as legal orphans and will be resolved in the loving families in which they were born,' Gamble said.