UK law discriminates against single surrogate parents, the President of the Family Division has declared.
In a new ruling, Sir James Munby considered the case of a British man who had commissioned a child from a surrogate mother in the United States. The baby is now 21 months old and lives with the man, who is single, back in Britain.
Under UK law, surrogate mothers and their spouses remain the legal parents of any children, regardless of DNA, until a court-issued parental order transfers their legal status to the commissioning parents. Parental orders also allow the authorities to issue a birth certificate for surrogate children who have been born abroad. Commercial surrogacy is illegal in the UK.
However, when the single man applied for a parental order he was refused because the relevant legislation, section 54 of the Human Fertilisation and Embryology Act 2008, refers specifically to “two people”.
Section 54 reads:
“On an application made by two people (“the applicants”), the court may make an order providing for a child to be treated in law as the child of the applicants if—
(a)the child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination,
(b)the gametes of at least one of the applicants were used to bring about the creation of the embryo…”
“(2)The applicants must be—
(a)husband and wife,
(b)civil partners of each other, or
(c)two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”
In court the would-be father argued that the section 54 should be interpreted as implying potential application to a single parent but Sir James Munby rejected this claim.
Consequently, the surrogate in the United states remained the child’s legal mother under UK law and he was made a ward of court. The unnamed man, meanwhile, pursued a new claim– that section 54 was incompatible with human rights legislation.
The President summarised the arguments of his counsel in court:
“Fundamentally… the objection to the requirement in section 54(1) of the 2008 Act that an application for a parental order can be made only by two people is that this is a discriminatory interference with a single person’s rights to private and family life, which is therefore inconsistent with articles 8 and 14 of the [European] Convention [on Human Rights]”.
The frequently quoted Article 8 governs the right to respect for private and family life, while Article 14 prohibits discrimination.
Sir James accepted this argument, issuing a rare ‘declaration of incompatibility’ with the Human Rights Act. Only 20 of these have been made to date, and 19 then resulted in the law being changed.
The single ‘father’ welcomed the ruling, stressing that he loved his son and had been certified as a good parent. He was, he said, now “eagerly” awaiting news of the government’s plans to address the situation “so my son does not need to indefinitely remain a ward of court.”
The full ruling can be read here.