Surrogacy ruling indicates change in law concerning family parental orders 24 May 2016
In September 2015, the President of the Family Division refused to grant a single man’s application for a parental order. He had entered into a surrogacy arrangement in Minnesota. The child was conceived with his sperm. He obtained an order in Minnesota which extinguished the Mother’s rights and which established that the child’s sole legal parentage was with the Father. The Father was named on the birth certificate.
The father then brought the child to England. Although the surrogate mother has no legal rights under Minnesota Law, she does have rights under English Law and here she is seen as the child’s parent. The Father then applied for a parental order in England which, if granted, would extinguish the birth mother’s legal rights in England and the father would be treated as the child’s only parent. However s.54 of the Human Fertilisation and Embryology Act only allows the Court to make a parental order on the application of 2 people and for this reason the Judge refused to grant a parental order.
The Father then applied for a declaration that the legislation was in breach of the European Convention on Human Rights. This was heard last week. The Secretary of State for Health was invited to intervene and he did so The Secretary of State conceded that on a very small point the legislation was incompatible with the European Convention on Human Rights. The Judge made a declaration to this effect but he was still unable to make the parental order. The law will only change when Parliament legislates on the point.
Anest Mathias, expert surrogacy and fertility lawyer at Osbornes comments:
“Over the weekend there were some misleading headlines which intimated that the Court had ruled parental order applications no longer need to be made by two people. This is incorrect. The law will only change when Parliament legislates on the point and it is important to be clear that the Court in this case did not make the parental order and the law has not changed”.
Anest has represented parties in two leading cases concerning the parenthood provisions of the Human Fertilisation and Embryology Act 2008.
Anest represented one of the Applicants in the case of A & Ors (Human Fertilisation And Embryology Act 2008)  EWHC 2602 (Fam) where the President of the Family Division granted declarations of parentage to couples who had received fertility treatment at clinics licensed by the HFEA but there were anomalies in the records in relation to the parentage. As a result of this case the HFEA indicated that they “will review the action we have already taken, alongside the Judge’s recommendations, to minimise the risk of this happening again.”
Anest represented Mr H in the leading case of Re M  EWHC 1910 (Fam) in which Mr Justice Jackson in the High Court held that a donor who provided sperm through natural insemination was the father of a child. Mr Justice Jackson considered section 35 of the Human Fertilisation and Embryology Act 2008.