Surrogacy and parental orders: what you need to know

Is starting a family an all-important life goal for you? Would you even consider it your human right? For many people, having children is a big part of their life plans, but unfortunately it isn’t always that simple.

For example, some people discover they or their partner are unable to have children. And those in same-sex couples will need to consider their options around having a family.

Surrogacy can prove to be a valuable option for such couples, but what are the legal implications?

The Human Fertilisation and Embryology Act 2008 (HFEA 2008) governs the law surrounding the arrangement to carry a child for a couple. In the UK, whether genetically related to the child or not, the surrogate is considered the legal mother and the surrogate’s husband is considered the child’s legal father. If a dispute arises on the birth of a child then this can lead to complex litigation between the carrier and her husband and the ‘intended parents’.

How can ‘intended parents’ get parental responsibility?

In order to become the child’s legal parents – and therefore gain parental responsibility – the intended parents (one of whom must be genetically related to the child) can obtain a Parental Order. Such an order will also extinguish the rights of the surrogate and her spouse.

Can single people gain a Parental Order?

HFEA 2008 prescribes, amongst other things, that an application for a Parental Order must be ‘made by two people’, that are either:

  • Husband and wife
  • Civil partners
  • Two people living as partners in an enduring relationship

So while this doesn’t prevent a single person from entering into a surrogacy arrangement, it will make the subsequent legal process more challenging.

Where does that leave single people?

As it stands, as the law prevents a single person from applying for a parental order the only current options are:

It’s always important to take specialist legal advice if this is something you wish to purse, as proceedings will always depend on the specific circumstances of your case.

What about the right to a family?

There is an interesting case surrounding this concept, known as the case of Z (A Child) [2016] EWHC. In essence, a father was prevented from obtaining a parental order purely due to his status as a single person, which was contrary to his human rights. This was accepted by the Hight Court.

Following the judgment in this case, the Government has accepted that the legislation needs to be updated. So what is the solution?

Plans are afoot for legislation to be put before Parliament which will enable single people to apply for parental orders on the same basis as couples. It is also anticipated that such applications will be able to be made retrospectively and outside the usual six-month timeframe.

While it was anticipated this new legislation would be introduced in early 2017, a number of delays have caused it to be put on hold and it is still very much a case of watch this space…

The Lester Aldridge family team deal with these and other issues on a regular basis and are frequently instructed by clients regarding divorce proceedings.

lester-aldridge-logoIf you would like to discuss any aspect of separation, arrangements for your children or wish to protect your assets prior to getting married, contact the family team on 01202 786161 or email [email protected]

Lester Aldridge LLP

About Lester Aldridge LLP

Lester Aldridge LLP is a nationally recognised law firm with offices in London, Bournemouth and Southampton. The family team are leaders in their field. Jane, Jo and Rosie are specialist family solicitors with a wealth of experience in all areas of family law from divorce to children, prenuptial agreements to the settlement of financial disputes and everything in between. These women are feisty when they need to be. But their approach is designed to reduce conflict in order to ensure the best possible outcome. They recognise that family issues can be extremely emotional and they offer access to specialist advice delivered in a friendly, approachable and understandable way designed to guide you from start to finish. If you would like an informal, no-obligation chat with Jane, Jo or Rosie please telephone 03300 539754.