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Jean-Yves Gilg

Editor, Solicitors Journal

Surrogacy laws due for reform

Surrogacy laws due for reform


Megan Bennie explains why change is needed in the law on single parents in surrogacy agreements

The president of the Family Division of the High Court, Sir James Munby, has caused controversy by ruling that the laws in the UK that cover the issue of surrogacy and single parenthood are discriminatory. The judge made a 'declaration of incompatibility' after hearing a case in London in May. The case, in which a single man fought discrimination through the family court after fathering a child through a surrogate mother, could see a change in UK law and put an end to discrimination against single surrogate parents.

Under the current law, the man, who has brought the 21-month-old child back to the UK after carrying out the surrogacy in the US, claimed that his right to raise a child was being discriminated against, and Munby P, who was presiding over the case, agreed.

He raised the point that as things stand, in the eyes of the court, a formal request for a 'parental order' cannot be made by a single person; only couples can make the application to transfer legal parental rights from a surrogate mother. This has caused major debate in the media and the government has declared that it is now giving serious consideration to the law and a possible change in legislation.

The man in question went to the US to have the child using his own sperm and an egg donated by a third party. The American surrogate mother gave birth to the child, named in court only as Z, in Minnesota in August 2014 and the father later returned to the UK to begin his fight to become the child's legal parent.

Even now, the man still has no legal parental responsibility over the child, despite the hearing stating that there
had been some level of discrimination against him.
UK family law dictates that the surrogate mother remains the legal parent, regardless of the situation or desire for other status from either party.

Currently, parental order applications can be made by couples who are legally married, including those in civil partnerships and those who
are deemed to be in what the law describes as an 'enduring family relationship', after being part of a surrogacy agreement. Successful applicants will
then have the legal rights of parenthood transferred from the birth mother (surrogate)
to themselves.

However, the current law makes no mention of single people being allowed to take legal parental responsibility after a surrogacy agreement has been made, even if both parties have given written consent in the contract prior to the surrogacy taking place. The only method of parenthood available in such situations at present would be adoption.

Munby P, who is the country's most senior family court judge, ruled in favour of the father
and deemed that the current legislation is incompatible with laws pertaining to human rights after considering what he heard in court. He also went on to inform those present that the child was made a ward of court during earlier stages of the litigation process and that the court had placed the child in the father's care.

The Department of Health
has since declared that it accepts the judgment and would look into making the necessary changes to bring parental orders up to date.

Megan Bennie is a trainee solicitor at Grayfords @grayfords

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