This House of Commons Library briefing paper considers surrogacy and parental orders, in particular the current position for single people who are unable to obtain such an order and the draft remedial order that seeks to address this matter. A link to the full report in pdf format can be found at the bottom of this page.Jump to full report >>
When a child is born to a surrogate mother, a parental order transfers both legal parenthood and “parental responsibility” from the surrogate mother (and her husband, if applicable) to the commissioning parents.
Section 54 of the Human Fertilisation and Embryology Act 2008 only allows for (prescribed) couples to apply for a parental order, and not a single person. The High Court ruled in May 2016 that this was incompatible with the European Convention on Human Rights (ECHR).
In December 2016, the Government confirmed that it would lay a remedial order before Parliament to allow single people to apply for a parental order and so bring the 2008 Act into compliance with the ECHR.
On 29 November 2017, the draft remedial order was laid before Parliament. The draft remedial order proposes “an equal approach for a single person and couples in obtaining legal parenthood after a surrogacy arrangement”. Should it enter into force, the remedial order will allow a six month period where an existing single parent through surrogacy can retrospectively apply for a parental order – as is already the case for couples.
On 2 March 2018, the Joint Committee on Human Rights (JCHR) reported to Parliament on the draft remedial order. The Committee noted that a “blanket ban on a person who is in a couple getting a single parental order is clumsy and inflexible, as well as discriminatory”, while the requirement for a single person still married or in a civil partnership to prove that a separation from a partner was permanent would “be difficult or impossible to prove to the Courts, and would seem to be unnecessary as a matter of policy”. The Committee also raised “a number of defective drafting concerns and concerns that require further elucidation by the Government”.
The Government has yet to state how swiftly it will reply to the JCHR’s report, but has said that “we currently estimate that the whole process should be completed before the [parliamentary] summer recess in 2018” – this is expected to commence on 25 July.
This note applies to United Kingdom.
Commons Briefing papers CBP-8076
Author: Tim Jarrett