The UK's High Court has ruled that single parents cannot apply for a parental order to become the legal parent of a child born throughsurrogacy.
The applicant is the biological father of a child, Z, born in the USA following a surrogacy arrangement using eggs donated by third party. Although the surrogate relinquished her parental rights and the applicant was registered as the child's father in the USA, on returning to the UK the legal status was different – the surrogate was treated as the mother and the father did not have parental responsibility. The child has been made a ward of court.
In order to become the child's legal parent and for the child to receive a UK birth certificate, the father was required to apply for aparental order. However, unlike adoption, a parental order can only be made by two people in a marriage, civil partnership or long-term relationship.
The applicant argued that this requirement was discriminatory and interfered with a single person's right to a private and family life under the European Convention on Human Rights (ECHR). The court was asked to interpret the rules on parental orders in such a way that would be compatible with the Convention rights.
Lawyers for the father also pointed out that the Human Fertilisation and Embryology (HFE) Act – the legislation dealing with parental orders – was updated to make the law fit for the 21st century by removing discrimination against different family forms, and that both the law and government policy clearly supported the principle that single people should not be excluded from adoption.
Sir James Munby, President of the Family Division, was not persuaded, however, saying that the provision in question could not be 'read-down' to include one-person applications. He explained that Parliament had made a very clear distinction based on important points of principle and such a construction would not be compatible with the 'underlying thrust' of the legislation.
It would ignore what 'has always been a key feature of the scheme and scope of the legislation', Lord Justice Munby added. The applicant did not pursue an argument that the legislation itself is incompatible with the ECHR.
Representing the father, Natalie Gamble, of Natalie Gamble Associates, said: 'This is about whether the court can stretch outdated laws to recognise the modern families actually now being created, and to protect the children being born into them.'
'We want to see children being born through surrogacy to single parents being treated in the same way as children being born to couples.'
Meanwhile in South Africa, the High Court in Pretoria has ruled that the requirement that at least one of the intended parents must have a genetic connection to the child for the couple to become legal parents through surrogacy – a requirement that also applies to parental orders in the UK – is unconstitutional.
'A family cannot be defined with reference to the question whether a genetic link between the parent and the child exists,' the judge said. The decision is being appealed to the Constitutional Court, reports IOL news.