In May 2016, the President of the Family Division, Sir James Munby, declared that certain provisions of UK surrogacy law were incompatible with a father and child's human rights.
In the case in question (Re Z, A Child, No. 2  EWHC 1191 Fam), the child's father was prevented from obtaining a parental order on the sole ground of his status as a single person. A parental order affects the transfer of parental responsibility and legal parenthood to the parents of a child born through a surrogacy arrangement, and extinguishes the status of the surrogate (and her spouse or civil partner if applicable). As a result, the child is treated as though born to the applicants. It is an order that can only be sought after the child is born, and in no way regulates who can access surrogacy in the first place.
The law as it currently stands (set out in sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008) provides that these transformative orders are only available to married couples, civil partners or two persons living as partners in an enduring family relationship.
Declarations of incompatibility and remedial orders
A declaration of incompatibility does not affect the validity of the law. What it does mean is that Parliament will now be forced to consider what steps are necessary to remedy the clash between these provisions of surrogacy law with human rights. One mechanism for doing so is called a remedial order, under section ten of the Human Rights Act 1998. This provides for a fast-track procedure by which the Government can amend law that has been declared incompatible with human rights.
The Government first indicated an intention to introduce a remedial order in December 2016. After a frustrating delay, a draft remedial order was finally laid before Parliament on 29 November 2017. The draft order proposes that a new section 54A is inserted into the HFEA 2008 to apply to applications by single people. Many of the provisions of section 54 are mirrored in the proposed section 54A, although the following provisions are of particular note:
1. The applicant must be genetically related to the child born through the surrogacy arrangement. In the case of a male single applicant, this means his sperm must have been used to fertilise the egg and produce an embryo. In the case of a female single applicant, this means that her eggs must have been used to produce the embryo.
2. The applicant must not be married, in a civil partnership, or in an enduring family relationship (subject to certain conditions).
3. Applications for parental orders regarding children born before the remedial order comes into force are permitted for a period of six months from the date that the new section 54A is enacted.
A period of 60 days (beginning on the day on which the draft order was laid) must be allowed for representations to be made about the contents of the order. During this period, the order will also be scrutinised by the Joint Committee on Human Rights. At the end of the 60 days, consideration will be given to any proposed amendments, and the final draft will be laid before Parliament. A motion will then be moved by the Government in each House to approve the draft order. It is anticipated that the process will take between four and six months, and that the law will be changed by the summer of 2018.
With evidence showing that a number of children, including Z, are currently living in legal limbo pending this legal change, it is hoped that there will be no further delays to the process.
Surrogacy law reform
The ruling in Re Z also prompted the Government to indicate that it would support a wider review of the UK's surrogacy laws by the Law Commission. Following a public consultation, the commission confirmed in December 2017 that a project on surrogacy would feature as part of its 13th Programme of Law Reform.
Such a move is very welcome. This case is just one example of how outdated the current law on parentage is in managing the realities of modern surrogacy. The Family Division of the High Court has over the past ten years made decisions which either stretch the outdated legislation to the point of meaninglessness or, as in this case, are contrary to the best interests of children.
The current law is bursting at the seams. That is unsurprising given how much the world has changed in respect of social attitudes, family structures, assisted reproduction and technological advancement since the 1980s. What we need is a considered review of the law which takes account of the realities of modern surrogacy practice, both for families conceived in the UK and abroad, so that all children born through surrogacy arrangements can have a secure legal identity from birth.