Lawyers must fix the problems with gagging orders before it is too late
At the beginning of December, we received the welcome news that a remedial order, amending the Human Fertilisation and Embryology Act 2008 (HFEA), is being laid before Parliament. The impact of the order, when it comes into effect next year, will be to allow single parents in the UK to apply for a Parental Order for their child born through surrogacy.
Currently, a Parental Order, which formally recognises the parentage of intended parents and extinguishes a surrogate’s legal parentage (and that of her husband), can only be made by two people. The couple can be same sex or heterosexual and must be married, in a civil partnership or an enduring family relationship. This has meant that single parents who have entered into surrogacy arrangements have been excluded from the ability to apply for a Parental Order.
In case of Re Z (A child) (No 2)  EWHC 1191 (Fam), the President of the Family Division made a declaration of incompatibility in respect of section 54 HFEA, following which we have been waiting for the law to be changed to allow for single applicants. The amended order has now been drafted and we hope will come into force in the first half of next year.
We have set out below some brief guidance on what to do now – whether your child has already been born yet or not.
Your child may be living with you under the terms of another order, for example a Child Arrangements Order, which means that you have parental responsibility. However, it is also likely to mean that the surrogate is still considered your child’s legal mother, even if she has no involvement in their care or upbringing.
Alternatively, your child may be living with you without any order in place to secure their legal position within your home and family.
The draft remedial order provides for a six month period during which an existing single parent through surrogacy can retrospectively apply for a Parental Order;
For children born before the remedial order is made
If you have had a baby through surrogacy within the last 6 months or are due shortly, you may wish to make applications for both a Parental Order and a Child Arrangements Order. The court is likely to list your first hearing in three months’ time, at which you can ask the court to make an interim Child Arrangements Order in your favour. This will give you parental responsibility for your child and address the legal basis upon which they will live with you until a Parental Order can be made. It is likely that the Parental Order application will be stayed (paused) while we wait for the HFEA amendment to come into force.
If you are not already the legal parent of your child, either because (for example in the case of an intended father) the surrogate was married or you are an intended mother, you may need to ask the court to make additional interim orders giving the court protective powers in respect of your child and restricting the use of the surrogate’s parental responsibility while the change to the law is awaited.
For children born within a period of 6 months prior to the remedial order being made
You have six months from the date of your child’s birth within which to make an application for a Parental Order. Although we do not currently know exactly when the law will change, if your child is born in the early part of next year, it is hoped that the amendment will be made in time for you to apply for a Parental Order within 6 months of birth, in the usual way. If you have any concerns about timing you should take legal advice and discuss whether you need to take any of the steps mentioned above. For example, you may decide to lodge your application for a Parental Order so that you are within your six month time limit and then suspend proceedings if the amendment has not yet come into force. Alternatively you could rely on the proposed clause permitting single applicants a widow of six month from the date of the order coming into force.
For children born after the remedial order is made
Once the HFEA has been amended, single applicants will be permitted to apply for a Parental Order in the normal way.
Should you have any questions relating to international surrogacy and the Parental Order process, please contact Connie Atkinson or a member of the family team.
You may also be interested in reading more about international surrogacy and the position in the UK HERE. Further information can also be found on our Frequently Asked Questions page about surrogacy and our previous blogs.
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