Single parents of surrogate children are now permitted to apply for parental orders following a welcome change in the law.
Under the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018, the rights of single parents have been brought in line with those of couples in being able to apply for parental responsibility where there is a genetic link to their child. The new law now places all parents on an equal footing when applying for parental orders, regardless of their relationship status.
The law as it previously stood drew widespread criticism for being discriminatory against single parents of children born through surrogacy. The Remedial Order, which has been in draft since 2016, took effect on 3rd January 2019 to rectify the discrimination and incompatibility in the Human Fertilisation and Embryology Act 2008 (HFEA 2008) as identified in the case of Re Z (A Child) (No.2) .
Prior to 2019, single parents had no legal right to apply for parental responsibility for a surrogate child. Applications for parental orders were only open to couples.
As a result, despite being genetically linked to their surrogate children, single parents did not meet the criteria for obtaining a parental order and as such were without legal protection or recognition of their role as the parent. At the same time, the birth parent(s) were unable to extinguish by law their responsibility toward the child.
This left single pursuing alternative legal options such as adoption, an application for a private law order which confirmed the living arrangements for the child (i.e. that they lived with that parent, but did confer legal parentage nor extinguish the legal parentage of the surrogate mother), or for the child to be made a ward of the court which requires the court’s involvement for any big decisions relating to the child.
It was widely recognised that these options were not fit for purpose and failed to adequately meet the needs of the parties in the situation.
With the new law in effect, ‘intended’ parents have six months from the birth of their child to make their application for a parental order.
Single applicant parents who already have surrogate children older than six months can apply for parental responsibility under special provisions, provided their application is made within six months of the Remedial order being brought into force, ie. 2 July 2019.