Single father surrogacy case could lead to change in the law

A single father who was told he had no legal rights over his surrogate son has won a landmark ruling from England’s top family judge.

The man, who cannot be named to protect the identity of his child, argued that the law breaches his human rights.

Under UK law, surrogate parents have to apply for parental orders which allow authorities to issue a birth certificate for children who have been born abroad – in this case the child, known as Z, was born to a woman in the USA.

But the law bars single mothers or fathers from this process. Section 54 of the Human Fertilisation and Embryology Act 2008, refers specifically to “two people”.

Section 54 reads: “The applicants must be –

  • husband and wife,
  • civil partners of each other, or
  • two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.”

As a result, Z was made a ward of court, even though he lives with his father, and the woman who carried Z was given sole decision-making rights.

But now the President of the Family Division, Sir James Munby, has argued the law discriminates against single people.

And his decision was helped by the fact that the Health Secretary, Jeremy Hunt, decided not to oppose the father’s application.

Lawyers for the Health Secretary told Sir James: “It is accepted that there is difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering into the same arrangement. The Secretary of State accepts that this difference in treatment can no longer be justified.”

As a result, Sir James declared that the law breaks Article 14 of the European Convention on Human Rights. There have only ever been 20 such final declarations made, and all but one has led to a change in the law.

However, not everyone was happy with the decision. Christian MPs said it was a child’s right to have two parents.

Rob Flello, the Labour MP for Stoke-on-Trent South, told the Mail on Sunday: “It’s a tragedy the rights of the child are not first and foremost – the right of a child to have a family around them.”

The parent of the child 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.”

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Mackrell Turner Garrett Solicitors in London