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Children: surrogacy, and single people and parental orders (UK)

Published Monday, February 5, 2018

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.

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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 first stage of the parliamentary process is consideration by the Joint Committee on Human Rights (JCHR), which has 60 sitting days to report to Parliament on the order i.e. on or before 28 March 2018.  The Government then considers the JCHR’s findings (there is no time constraint on it to do so), before Parliament has a further 60 sitting days to consider and approve the final draft.  The Government has said: “we currently estimate that the whole process should be completed before the [parliamentary] summer recess in 2018”.

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.

This note applies to United Kingdom.

Commons Briefing papers CBP-8076

Author: Tim Jarrett

Topics: Children and families, Civil partnerships, Cohabitation, Human rights, Marriage

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