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The government has finally sent a draft remedial order to Parliament to change the law on surrogacy to enable single parents to be able to obtain legal recognition for their families in the same way as couples can currently do.
As the law stands at the moment it is not open to the court to make a parental order on the application of one person. A parental order is an order which grants the applicants the legal status of being the child’s parents following the child being born to a surrogate.
Under the current law here in England (regardless of which country the child was born or who the biological parents are) the surrogate and her spouse are the legal parents of a child born through surrogacy until the intended parents obtain a ‘parental order’. This results in children being born and their intended mother or father not being their legal parent – for instance where a single man has a child with a surrogate who is married the single man, who is biologically the child’s father, is not legally recognised as a parent or where a single woman has a child using a surrogate, it is the surrogate that is recognised as the mother not the single woman to whom the child is genetically related to. The situation is further complicated if a child is born to a surrogate outside England with cases arising where the child is left in a situation where no one is legally recognised as their parent. This does not fit in with the overriding principle in English law which is that the welfare of children is paramount.
The President of the Family Division made a declaration back in 2016 that the law only allowing couples to apply for a parental order is incompatible with the rights under the European Convention on Human Rights insofar as they prevent an applicant from obtaining a parental order on the sole ground of their status as a single person, as opposed to being part of a couple.
The requirement that an application for a parental order can be made only by two people has been found to be a discriminatory interference with a single person’s rights to private and family life.
The law hasn’t changed just yet, but the formal process has started. The change is likely to be some time in 2018. The remedial order is now being considered by Parliament.
If the remedial order is passed it will mean that single parents who have a child through surrogacy (provided they are biological parents and meet the other criteria) will be able to apply for a parental order. This will enable them to be recognised as a legal parent and to be named as the child’s parent on the birth certificate.
Normally a parental order should be applied for before the child is six months old, but the remedial order includes a specific retrospective provision enabling parents with children older than six months to apply. It is understood, that there will be a six-month period for existing parents to apply once the law has been changed.
In the 21st century where family structures are much more diverse the laws around surrogacy need to be reviewed, this remedial order could be the first change of many. As the government itself has acknowledged during the recent process relating to the remedial order surrogacy has an important role to play in our society, helping to create much wanted families where that might otherwise not be possible, enabling people who aren’t able to have a child themselves have their own genetically related children.