Single and separated parents can now be legal parents to children born through surrogacy. A parental order makes the applicant the legal parent of the child and it is very important for the parents and the child that this order is securely in place following a birth by surrogacy.
Just before Christmas, the government enacted its plans to change the law to give single parents to children born via surrogacy the same legal status as parents applying as a couple. This is not just for new parents, and there is a window for single parents whose baby was born before the new law to apply under its new provisions too.
This follows a declaration by the High Court in 2016 that the existing law was incompatible with the Human Rights Act because only couples in an ‘enduring relationship’ could apply for parental orders.
This created a hurdle for separated parents and single parents who were prevented from applying for a parental order. It meant that there were cases where a biological parent of a child born through surrogacy could only become the legal parent by adopting their own child. Adoption can be a lengthy and stressful legal process and leaves the child in legal limbo while the proceedings are ongoing.
By a remedial order dated 20th December 2018 the government has now amended the relevant section of the Human Fertilisation and Embryology Act 2008. The other legal conditions to parental orders still apply in the same way, including that the application must be made within six months of the child’s birth. However, the remedial order gives existing single applicants, whose baby was born before the new law, six months from the date of the new law to apply.
There are other aspects of surrogacy law in the UK which may not be fit for purpose in modern times. The government has confirmed its support for the Law Commission’s ongoing review of surrogacy law, and there may be further changes to come.