OTS Academy – Surrogacy, Single Parents, and Parental Orders

There are many options open to people who want to become parents, but for one reason or other find it difficult. Surrogacy is one such option, although as good Family Solicitors will explain, the arrangements for confirming the legal parents of a child born through a surrogacy agreement in the UK have been problematic for single parents. Most London Family Solicitors welcome the news that new rules are due to come into effect in 2018 to change the rules on surrogacy and parental orders.

Surrogacy and parental orders – the current position

The law surrounding legal parentage in surrogacy cases is contained in the Human Fertilisation and Embryology Act 2008 (HFEA). In the UK a child can only have two legal parents. This means that when the child is born under a surrogacy arrangement, the surrogate and her husband/wife/civil partner are immediately named as the two legal parents. The intended parents must then apply for a parental order to transfer legal parenthood and parental responsibility from the surrogate parents to them.

The law currently states that a parental order can only be made in respect of a couple – not a single parent. In 2010, parental orders were extended to include married same sex couples, civil partners and those in enduring family relationships, but not single parents. Although single parents have access to IVF and adoption, and there is nothing to prevent a single parent from entering into a surrogacy agreement in the UK, they do not have access to parental orders even though they do have access to IVF treatments and adoption.

Without the ability to apply for a parental order, a single parent faces a more complex legal process than a couple to obtain parental responsibility for their child. Parental responsibility can be transferred from the surrogate to a single parent through adoption or a child arrangements order. This can raise nonsensical issues such as having to adopt your own child as well as the surrogate mother (and spouse/partner) being named as the legal parents in child arrangement order scenarios.

Incompatibility with the European Convention on Human Rights

The current position that single parents cannot apply for a parental order has already been declared incompatibly with the European Convention on Human Rights (ECHR) by the UK courts. Following the decision in May 2016, the UK Government confirmed that it would bring the Human Fertilisation and Embryology Act 2008 into line with the ECHR.

What’s going to change?

In December 2016, the Government announced plans to introduce a remedial order allowing single parents to apply for a parental order in respect of a child born through a surrogacy arrangement in the UK. There will also be a 6 month period during which existing single parents through surrogacy can apply for a parental order.

At the end of 2017 it was announced that legal changes would take effect in 2018, making it possible for single parents to apply for parental orders for children born through surrogacy arrangements. Unfortunately, the exact date for the changes remains something of a mystery. The Joint Committee on Human Rights raised a number of drafting concerns in respect of the draft remedial order, and a House of Commons Library briefing paper published earlier in May 2018 explains the Government’s position that it “… currently estimate [s] that the whole process should be completed before the [parliamentary] summer recess in 2018”. The summer recess is due to start on 25th July 2018, and the window of opportunity may now have been missed.

Where does this leave single parents?

Once the remedial order has been finalised, single parents wishing to apply for a parental order following surrogacy will be able to do so in the same way as a couple. In the meantime, as the best Family Solicitors will be advising their clients, here at OTS solicitors, we are advising single parents currently going through a pregnancy with a surrogate to try not to worry about where the changes will leave them depending on the birth date of their child.

If your child is born before the remedial order is made, you will have to take steps to secure yourself as the legal parent of the child, and to transfer parental responsibility, through adoption or potentially by applying for both a parental order and a child arrangements order at the same time. It is likely that an application for a parental order made before the changes have come into force will be paused until the adjustments are made. The child arrangements order would mean that parental responsibility could be transferred to you from the surrogate until it is possible to go ahead with the parental order.

Like all the best family lawyers in London, we hope that the remedial order will come into effect sooner rather than later, ending this aspect of discrimination against single parents, and making surrogacy arrangements that little bit less complex.

If you are a single parent seeking to start a family through surrogacy or already have a child born through a surrogacy arrangement and need of legal advice with regards to the new legal changes, don’t hesitate to contact our team of top family solicitors in London. At OTS Solicitors our dedicated divorce and family law solicitors such as Behzad Sharmin can handle all aspects of surrogacy arrangements, both here in the UK and abroad. We also work closely with our Immigration lawyers to advise on foreign surrogacy arrangements and any associated Immigration matters which may apply, so that you can ensure your baby can enter the UK and obtain British Citizenship. Call 0203 959 9123 to book your appointment today.