Back to basics with testamentary capacity
Surrogacy lawyers were all waiting with baited breath for the decision in the recent Re Z (A child) 2016 EWHC 1191. In this case, a single father made an application for a declaration that the refusal to grant him a parental order was incompatible with the European Convention on Human Rights/the Human Rights Act.
The UK’s surrogacy laws are set out in the Human Fertilisation and Embryology Act 2008. Intended parents of surrogate children are required to comply with the conditions in section 54 of that Act when applying for a parental order (which recognises them as the legal parents in place of the surrogate and her husband/wife). One of the conditions is that the application must be made by 2 people, which means that single parents are precluded from regularising their parental status under these provisions.
In Re Z, the father was denied a parental order in September 2015. He argued that the requirement for two applicants was a “discriminatory interference with a single person’s right to private and family life… inconsistent with articles 8 and 14 of the Convention”. The child in this case was made a ward of court and was represented by a Children’s Guardian, who supported the father’s case. The Secretary of State was a party to the proceedings and by the time of the hearing conceded that the provisions of section 54 are incompatible with article 14 (prohibition of discrimination) taken into conjunction with article 8 (right to respect for private and family life). The Secretary of State accepted that there is currently a difference in treatment between a single parent entering into a surrogacy arrangement and a couple entering into the same arrangement and that the difference is based solely on the status of the commissioning parent.
The court made a declaration of incompatibility in the terms sought by the father and accepted by the Secretary of State. The court went no further and did not express any views about the merits or necessity of legislative reform.
Where does that leave us now?
The declaration of incompatibility itself does not change the law. It does, however, force Parliament to consider what steps are required to remedy the incompatibility. Happily, Parliament has indicated (on 23 May 2016) that the Law Commission has been asked to consider including a project on surrogacy and that it is looking to “update the legislation on parental orders” in light of the decision in Re Z. Sadly, no timescale has been indicated, but all of the practitioners and commentators in this field are hoping for speedy reform, to ensure there is no longer discrimination between single parent families and couples and, more widely, to ensure the reform of surrogacy law is put at the top of the legislative agenda. We are working with outdated legislation, initially passed in 1985 when social views were so different and surrogacy was not as popular a route to parenthood. In my view, that legislation does not properly protect children and it does not reflect the reality of surrogacy in the UK – nor does it address surrogacy options for single parents.
A petition for surrogacy law reform has been started by Natalie Gamble Associates and I am certainly hopeful that the petition will help to get this important issue heard and resolved in the not too distant future.
Surrogacy can be full of potential pitfalls and we recommend you spend time researching, reading relevant literature, speaking to others who have had a child through surrogacy and engaging a specialist lawyer to help you to understand the legal issues.
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