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

Published Monday, December 10, 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 allows for (prescribed) couples to apply for a parental order, but not a single person. The Government explained that, at the time, adoption was considered a more appropriate route for single people.

The following is a timeline of key developments:

  • May 2016 – the High Court ruled that the inability of a single person to obtain a parental order was incompatible with the European Convention on Human Rights (ECHR);
  • December 2016 – the Government confirmed that it would lay a remedial order before Parliament to allow single people to apply for a parental order;
  • November 2017 – a draft remedial order was laid before Parliament to bring the 2008 Act into compliance with the ECHR;
  • March 2018 – the Joint Committee on Human Rights’ (JCHR) report on the draft remedial order stated that a “blanket ban on a [single] person who is in a couple getting a single parental order is clumsy and inflexible, as well as discriminatory” and 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”;
  • July 2018 – the Government published a revised draft remedial order;
  • November 2018 – the JCHR said the revised draft order had addressed its concerns. Also, the Government published new parental order regulations as a consequence of the remedial order.

Both the revised draft remedial order and the draft parental order regulations are currently being considered by Parliament and are not yet in force.

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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