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UK law unfairly discriminates against single parents with children born through surrogacy

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Sir James Munby, the President of the High Court Family Division, has made a formal declaration that UK law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights.  

In a recent case of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) an application had been brought by the biological father of 'Z', a 21 month old boy born through a recognised US surrogacy arrangement who lives with his British single father in the UK. 

Last year the court denied Z's father a UK parental order (which would extinguish the responsibilities of the surrogate and lead to the issue of a birth certificate for Z in the father's name), because only couples, and not single people, are permitted to apply.  The court ruled that the surrogate who had carried Z (who lives in the USA, is not his biological mother and has no legal status there) had sole decision-making rights in the UK.  Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care.  The High Court has now said that that decision, although legally necessary, was incompatible with the father's and the child's human rights, and that the law discriminates unfairly against both the father and Z. 

In an unprecedented move, the Secretary of State for Health Jeremy Hunt (having seen the father's arguments) conceded that the law was incompatible with human rights legislation and did not oppose the father's application.  The removal of the bar on single surrogate parents brought protests from MPs and traditionalist family commentators over the weekend. Critics say the decision undermines the legal principle that the needs of the child must be paramount with one Labour MP describing it as ‘tragic’ that the rights of children are not being put before the rights of parents. Only Parliament can change the law itself and the Department of Health’s spokesperson has said that they will give full consideration to the judgment.

Changes in the law however take time and therefore it is important that you seek advice from the offset when embarking on expanding your family through surrogacy. Contact our specialist Stephanie Bellchambers on 023 92370634.