Since 3 January 2019 single parents have been able to apply for a Parental Order following a surrogacy arrangement. The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 came into force on the second business day of 2019. Before this remedial order came into force, only couples who were either married; in a civil partnership; or in an enduring family relationship were able to apply for a Parental Order.

Why has the law changed?

There has been much anticipation from family law practitioners who specialise in this area, for this change to come into force following a 2016 case Z (A Child) (No 2) [2016] EWHC 1191 (Fam), involving a single applicant father who was refused a Parental Order. The President of the Family Division at the time, Sir James Munby, found that the law, as it stood surrounding Surrogacy, was discriminatory and in contravention of the Human Rights Act.

What is a Parental Order?

When a woman gives birth to a child in the UK, she is considered to be the legal mother, regardless of whether she has a genetic link to the child. If the surrogate mother is married her husband is also considered to be the legal father of any resulting child. The making of a Parental Order transfers the legal parentage from the surrogate mother (and her husband if she is married) to the intended parent(s). Before the remedial order came into effect, if a single applicant wished to start a family by entering into a surrogacy arrangement, the only way they could be legally recognised as the child’s parent is through an adoption order. However as law practitioners, we have always viewed adoption as a poor substitute for recognising the legal relationship between a parent and a child born through surrogacy. In a surrogacy arrangement, one of the applicants for a parental order must have a genetic link to the child. By way of contrast, in most adoption cases, the adopted child inevitably cannot be cared for by their birth parents and needs to be matched with substitute parents who will not have a genetic link to the child.

The Family team at Bishop & Sewell welcomes this change for prospective single parents. When we exhibited at the Fertility Show at Olympia in November 2018 we were approached by a few single parents exploring the option of ‘surrogacy’. Whilst we were aware of this anticipated reform to the law, due to the uncertainty of the timeline and parliament time being rather preoccupied with Brexit to be reforming many laws, many single parents felt it was safer to explore International Adoption until the change in the law was made.