Surrogacy: UK law unfairly discriminates against single parents

Josie Hayes web

By Josephine Hayes

In a recent case the High Court has determined that surrogacy law in this country is incompatible with the human rights of single parents and discriminates against both single parents and children.

The case, Re Z (A child) (no 2) [2016], concerned a 21 month old child who was born through a recognised surrogacy arrangement in the USA. The child lives with his father in the UK. In 2015, the father applied for a parental order which would extinguish the parental responsibility of the surrogate and provide for the issue of a birth certificate in his name. The application was rejected because only couples are permitted to apply. This left the surrogate, who was living in the USA and was not the biological mother of the child, as the only person able to make decisions for the child. To safeguard the child there was no option but to make him a ward of the court to enable the court to make decisions about his care. Whilst recognising that this decision was legally correct, on the basis of the current law, the High Court made a rare declaration of incompatibility confirming that this law is incompatible with human rights legislation and is discriminatory.

UK surrogacy law has faced glaring criticism and is generally thought to be outdated and limited. It remains to be seen whether the government will take action and change the law to prevent more children being left in a legal limbo, but generally when a declaration of incompatibility is made it does carry significant weight and tends to prompt a change in the law.

Josephine Hayes is a solicitor in the Family department at Barker Gotelee Solicitors.

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