In the recent case of Sir James Munby, the president of the Family Division, dismissed an application by a father for a Parental Order solely in his favour in respect of a child born by surrogacy.
The application was dismissed on the basis that section 30 of the Human Fertilisation and Embryology Act (HFEA) 1990 made no provision for a Parental Order to be made in favour of a sole parent.
This appears to be a troubling decision in view of all the major strides taken in recognising the diversity of modern families. It is important to have a look at the law and some key facts regarding Parental Orders to understand decisions such as these….
- made it possible for a married couple to apply for a Parental Order for a child born by surrogacy if either of them were the genetic parents. The Parental Order makes them legal parents.
- made Parental Orders available to civil partners or couples (same sex or otherwise) in an ‘enduring family relationship’
Section 54 HFEA 2008 sets out the criteria to be met for the making of a Parental Order:
- There must be . HFEA 2008 did not amend or change any of the criteria in HFEA 1990 regarding this requirement, hence the decision in Re Z above.
- The conception of the child must have been by .
- At least one of the applicant parents must be a
- The application for a Parental Order must be made within starting from the day on which the child was born.
- At least one of the applicants must be .
- The surrogate mother (and any other person deemed to be a parent of the child; ie the surrogate mother’s husband) must
- There can be for the making of the Parental Order. It is a criminal offence in the UK to enter into a commercial surrogacy agreement.
A worrying anomaly
HFEA 2008 came into force on 6th April 2010. A provision with the Act allowed children already living with same sex parents to be made subject to a Parental Order, provided that the application was made within 6 months of 6th April 2010. It now follows therefore that Parental Orders are not available to same sex parents of children born by surrogacy arrangements before 6th April 2010.
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