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Single parents with children born through surrogacy should have same rights as couples, declares the President

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

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 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 (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 government has not yet said whether it plans to take action to change the law.  Although it is for Parliament to change the law, declarations of incompatibility from the High Court carry significant weight and to date all but one of the 20 final declarations made by the court under the Human Rights Act have prompted legal change. 

Responding to today's judgment, Z's father said:

"I am delighted by today's ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court."

Elizabeth Isaacs QC, leading counsel for the father, said:

"Declarations of incompatibility are rarely made, so this is a very significant decision.  Having consented to the declaration, there is no reason why the government should not take swift action to change the law.  We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible."

Natalie Gamble, solicitor for the father whose firm specialises in surrogacy cases, said: 

"This child, and dozens of others already born to single parents in the UK, need rescuing from legal limbo.  It is preposterous that the biological parents of loved and wanted children cannot be recognised as legal parents.  The UK has a proud tradition of taking a progressive approach to assisted reproduction and non-traditional families, and this is a glaring anomaly which conflicts with our most fundamental values of protecting children's welfare."

The ruling comes amongst a growing body of voices calling for a more wide-ranging review of UK surrogacy law, which has not been updated since the 1980s, and which does not recognise surrogacy agreements and instead treats the surrogate and her husband as the legal parents.  In a Parliamentary debate in October 2014, Jessica Lee MP said UK surrogacy law was "outdated, limited and in places illogical".  Last week Baroness Warnock, the architect of the UK's surrogacy laws in the 1980s, told Radio 4 Woman's Hour that she had 'got surrogacy law wrong' and that parents through surrogacy should be recognised as the legal parents of their children from birth. 

Helen Prosser of Brilliant Beginnings, a leading non-profit UK surrogacy agency which helps parents through surrogacy both in the UK and the USA and is campaigning for legal reform, said:

"The discrimination against single parents is a pressing issue and we are delighted at today's ruling, and the government's sensible approach in supporting it.  However, there are also other significant problems with UK surrogacy law, which is failing children and driving increasing numbers of parents to enter into surrogacy arrangements overseas.  UK law on surrogacy is woefully outdated and out of step with modern reality, and we hope that this ruling will also highlight the need for a more thorough review of surrogacy law." 

Elizabeth Isaacs QC and Adem Muzaffer both of St Ives Chambers (instructed by Natalie Gamble Associates) acted for the applicant father. Teertha Gupta QC and Andrew Powell both of 4 Paper Buildings (instructed by CAFCASS Legal) acted for Z. Samantha Broadfoot of Landmark Chambers and Dorothea Gartland of 4 Paper Buildings (instructed by the Government Legal Department) acted for the Secretary of State for Health.

The judgment is here.

20/5/16