Surrogacy – Case of Re Z  – Parental Order
The law regarding surrogacy is a complex area and one which is now shifting towards reform. This was illustrated in the recent landmark case of Re Z  EWFC 73 which concerned an application by a single father for a Parental Order.
This case involved a single father’s sperm and a third party donor’s eggs implanted in a surrogate mother in Illinois. The child, Z, was born in Minnesota in 2014. Surrogacy arrangements had been made through the agency of an Illinois company in accordance with Illinois law prior to the birth of Z. After the birth, the father obtained a declaratory judgment from Minnesota which relieved the surrogate mother of any legal rights and responsibilities she had in relation to Z. The court order gave legal recognition to the father’s sole parentage of Z in Minnesota. However, the father did not automatically have parental rights in the UK. The surrogate mother was regarded as Z’s legal mother in the UK because a mother, whether via surrogacy arrangement or otherwise, automatically has parental responsibility in the UK for her child.
In order to secure a permanent transfer of parental responsibility in the UK, the father could either apply for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, or adopt Z under section 46 of the Adoption and Children Act 2002. A parental order application was thus made by the father which was consented to by the surrogate mother. This application was problematic as the legislation requires such an application to be made by two people in a “committed or loving relationship”, rather than as a single parent. Z’s father decided to proceed with the application, which challenged the current legislation currently in force. Sir James Munby at the first application concluded that he could not agree that the HFEA 2008 could be “read down” in this case and therefore the application was refused.
In the second part of the case (Z  EWHC 1191 (Fam)), the father argued that section 54 was incompatible with Article 8 (right to respect for private and family life) taken in conjunction with Article 14 (prohibition of discrimination) of the Convention for the Protection of Human Rights and Fundamental Freedoms in accordance with section 4 of the Human Rights Act 1998. This argument was based on the fact that the current legislation does not provide for a single person to obtain a Parental Order, raising an argument that this is in breach of a person’s human rights.
The President of the Family Division, Sir James Munby, declared that the law is incompatible with the father’s and the child’s human rights. The Secretary of State similarly conceded that UK law had breached human rights legislation. The Government thus conceded the declaration prior to the Final Hearing and agreed that the matter should proceed. Sir James Munby was asked during the course of proceedings as to how the conceded incompatibility may be remedied. The President declined to comment on this issue and stated that he was in agreement with the Secretary of State that it is constitutionally a matter for the legislature to determine its response.
Since this landmark case, the Government have requested that the Law Commission address this issue and in December 2016, the Government confirmed its intention to change the law regarding a single parent’s application for a Parental Order.
This case shows the intricacies and complexities involved in surrogacy which should be guided by a legal professional with the required knowledge and experience. Please contact our specialist surrogacy lawyer, Anne-Marie Hamer on 01935 811634.