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

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.

Previously, section 54 of the Human Fertilisation and Embryology Act 2008 only allowed (prescribed) couples to apply for a parental order – not a single person. The Government explained that, at the time, adoption was considered a more appropriate route for single people. The position has now changed following an amendment to the 2008 Act which allows single people to apply for a parental order.

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.
• January 2019 – the remedial order came into force, so inserting section 54A into the 2008 Act. The associated regulations came into force in December 2018. Single people are now able to apply for a parental order.

The Law Commission of England and Wales and the Scottish Law Commission have commenced a project to examine the law on surrogacy; a consultation paper is expected to be published as part of their work.

This note applies to United Kingdom.