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The government proposes changes to existing surrogacy law

Last week the government proposed changes to existing surrogacy law. These changes (if passed by parliament) will allow single men and women who have a child through a surrogate to become full legal parents more easily.

Whilst the law of England and Wales has never stopped single people from having children via a surrogate, it is currently very difficult for single parents to become legal parents through a surrogacy as they must go through the more arduous and complicated process of adopting their intended child, rather than rely on surrogacy laws to become a legal parent.

Currently, couples (both heterosexual and same sex) who have a child through a surrogate are able to apply for a “parental order” under the Human Fertilisation and Embryology Act 2008.  A parental order has the effect of conferring legal “parenthood” on the intended couple from the surrogate mother (and any other existing legal parents). This results in changing the legal parents of the child to the intended parents and bringing an end to any legal links which the child has to the surrogate and other legal parents. The original rationale for preventing single people from benefiting from parental orders was that single people should be subject to a more stringent process of proving that they are able to handle the demands of being a parent than couples should be.

The government’s proposed changes to the legislation (which are set out in its command paper dated 1 December 2017) would mean that for the first time, single men and women will be able to apply for parental orders. The law will also allow existing single parents through surrogacy to retrospectively apply for parental orders provided that they apply for the order within six months of the law coming into effect.

The changes have been proposed in response to a declaration by the family court in May 2016 in Z (A Child) (No 2) [2016] EWHC 1191 (Fam) that the current legislation enabling couples but not single persons to obtain a parental order following a surrogacy was incompatible with the European Convention on Human Rights (namely Article 14 – prohibition of discrimination).

The government’s proposals will need to be considered and passed by parliament before they can become law.

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