The single surrogacy saga

The surrogacy process is set to be opened up even further to single parents. About time too, you might think, given that it is now over two years since the President of the High Court Family Division in England made a formal declaration that the current law on UK surrogacy is incompatible with the European Convention on Human Rights (ECHR). But the end of this discrimination, based on relationship status alone, is now in sight, following publication on 20 November 2018 of the second report on the Draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 by the Joint Committee on Human Rights. This report recommends a number of changes to the Human Fertilisation and Embryology Act 2008, and sees no reason why both the House of Commons and House of Lords should not agree to approve the changes.

First attempt at change

Re Z (A Child) (No 1) [2015] EWFC 73

The process leading to that all-important declaration of incompatibility started with a single father embarking on a gestational surrogacy arrangement with a divorcee in the USA. Baby Z was created using the sperm of the father (a UK national) and donor eggs from an anonymous donor. After baby Z was born in August 2014, a court in Minnesota declared the father to be the sole legal parent of Z in accordance with Illinois law, and baby Z was brought into the UK 11 days later. So far so good.

The father then sought to obtain a parental order through the UK courts in respect of his son. But current law provides that the transfer of legal parenthood from a surrogate to the commissioning or intended parents (note the plural) shall proceed by way of joint application for a parental order in terms of s 54 of the 2008 Act. The applicant sought to persuade the court that s 54 could be interpreted, or rather “read down” using s 3 of the Human Rights Act 1998, so that the reference to applications from two people could also allow applications to be made by a single person.

That argument was not persuasive (somewhat unsurprisingly in the writer’s view), and Sir James Munby dismissed the application. In doing so, however, he noted that the applicant might wish to seek a declaration of incompatibility (DoI) under s 4 of the 1998 Act.

Second attempt at change

Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam)

So he did. Round 2 ensued in May 2016 and in the second case, the applicant sought a DoI in relation to s 54 of the 2008 Act. He submitted that the provision was incompatible with the rights of the father and/or the child under ECHR article 8 (right to private and family life), or article 8 taken in conjunction with article 14 (non-discrimination). He referenced ECHR case law such as Mennesson v France (Application number 65192/11)RH and Labassee v France (Application number 65941/11), which found that a child’s article 8 rights could be violated if the state refused to recognise the child’s relationship to its biological parent following a surrogacy arrangement. He also sought to rely on article 12, which protects the right to found a family.

On the eve of trial, the Secretary of State for Health conceded that the 2008 Act was incompatible specifically with article 8 taken in conjunction with article 14, and therefore discriminatory against single people. By agreement, the court therefore made an order declaring that “Sections 54(1) and (2) of the Human Fertilisation and Embryology Act 2008 are incompatible with the rights of the Applicant [father] and the Second Respondent [child] under Article 14 EHCR taken in conjunction with Article 8 insofar as they prevent the Applicant from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple”.

Remedial order: a difficult birth

In December 2016, following this declaration, the Government committed to lay a remedial order (RO) before Parliament to amend the law. Eleven months later, on 29 November 2017, the draft Human Fertilisation and Embryology Act 2008 (Remedial Order) 2018 was laid before both the House of Commons and House of Lords. A better example of a dog’s breakfast you may not have seen!

Ironically, the first draft RO, which quite rightly intended to provide “an equal approach for a single person and couples in obtaining legal parenthood after a surrogacy arrangement”, created a further layer of unintended discrimination between legally single persons in a relationship, and couples in a relationship. It effectively stated that the applicant must not be married, a civil partner, or living with someone in an enduring family relationship. OK, fine. But the applicant could be married, a civil partner, or living with someone in an enduring family relationship in certain circumstances, that being where the spouse or civil partner could not be found, was suffering from physical or mental ill health rendering them incapable of making a joint application with the applicant, or the parties had separated, were living apart, and the separation was likely to be permanent.

Looking at the incapability aspect, it is the writer’s view that it would have been discriminatory to state that, for example, if someone was physically incapable of making an application jointly, or one party suffered a temporary nervous breakdown rendering them incapable of providing instructions within the six month window, then only one parent would acquire parental rights. And looking at the permanency of the separation, it would also have been (unintentionally of course) discriminatory to require a “single” person who has separated from his or her spouse or civil partner, to have to prove to the court that any separation was likely to be permanent. Particularly in those cases where, as a matter of fact, it might not be: people often take time apart to resolve differences, and sometimes parties reconcile.

But paying due cognisance to the six month time limit within which a parental order application should be lodged, an applicant parent with a biological connection to the child could well have been prevented from having parental rights if there was any question over the likelihood of a reconciliation. In any event, why should a legally single biological applicant not be in an enduring family relationship? This wording could have resulted in situations where a single parent’s partner, with no biological relationship to the child, and potentially no desire to be recognised as such a parent, required to be recognised as that child’s parent merely for an order for the biological parent to be so recognised. Even worse, it could have given a single biological parent’s partner a power to veto the court from granting any parental order at all, thus rendering an application for a parental order impossible under both ss 54 and 54A (albeit in this event a permanent separation would be likely to occur!). This would only have continued the legal limbo of children already in this position.

But the Government saw sense. Thank goodness for Harriet Harman; words the writer never thought she would utter. Matters such as these were ironed out in the Government’s response to the draft report of the JCHR, of which the Rt Hon Harriet Harman MP is chair, and these potentially disastrous amendments to legislation by way of RO now appear to be cured.

So what comes next?

A new s 54A will be added to the 2008 Act dealing with parental orders by one applicant. There will be no legal requirement to rely on any relationship status in any application for a parental order by a single parent. The applicant must have a biological connection to the child, but whether he or she is married, in a civil partnership or cohabiting will not determine the grant of a parental order in respect of the child. There will be a six month period of grace so that any application relating to a child born before the coming into force of the RO (date currently unknown) can still be made within six months of when the section takes effect. But a parental order relating to the child must not previously have been made, unless the order has been quashed or an appeal against the order has been allowed.

At the heart of this whole issue is the right to family life. It is the right of both a child and the biological parent of that child to have that relationship legally recognised following a surrogacy arrangement. As in Re Z (A Child) (No 2), the court found this distinction between single parents and couples incompatible with the right to private and family life and discriminatory under the European Convention on Human Rights. It is pleasing finally to see that a parent’s relationship status will no longer preclude a child being legally recognised as the child of their biological parent.