A baby boy born to a surrogate mother as part of a commercial surrogacy arrangement has been left without a legally recognised parent in the UK due to a curiosity in the law. The surrogacy arrangement was made between an American mother and a UK man, however a UK court refused to recognise the man as the boy’s father because he is single.
The boy was born just over one year ago in Minnesota after the father paid £30,000 to become a parent using his own sperm, a donor egg and a surrogate mother. Whilst the man is genetically the boy’s father and is recognised as the boy’s sole parent by an American court, even with complete agreement from the surrogate mother the UK courts cannot legally formalise the agreement under the law. This has meant that the boy is left without a family and is a ward of the court under the law.
The case has highlighted a glaring problem in the legal framework and one which seems to be contrary to equality principles. senior Family Judge Sir James Munby, stated that this could not be a permanent solution but that he did not have the power to grant a parenting order to the man.
The Human Fertilisation and Embryology Act 2008 dictates that parenting orders in surrogacy cases may only be granted to couples. Couples may be married or cohabiting and same-sex or heterosexual. However, the law on surrogacy does not match that of adoption where single people are permitted to become parents.
Sir James Munby in his judgement outlined that parliament discussed amending the law around seven years ago to enable single parents to be granted parenting orders however, this was not carried forward. It was considered by parliament that surrogacy is a fundamentally different arrangement to adoption or IVF treatment as the woman is making the agreement to hand over the child to someone else prior to conception, the junior health minister of the time stated that this arrangement was of such ‘magnitude’ that it required a couple. However the Barrister working on behalf of the man involved, Elizabeth Isaacs QC, outlines that the couple requirement was an offence to the principles of 21st Century family, she said there should be:
“no discrimination against the increasingly different kinds of family which society is creating” and added that the welfare of the boy which should be the courts primary consideration is not being properly served by his current circumstances. However, as the law is clearly stated in primary legislation, it will be up to parliament to rectify the law before the boys arrangements can be changed.
Sir James Munby discussed the difference in the law of adoption and surrogacy describing it as “both very striking and, in my judgment, very telling”. He highlighted that it must represent a clear difference of policy as both in 1990 when the law was created and in 2008 when it was again discussed, Parliament determined that surrogacy required a couple and thus a distinction from the law of adoption. However, this case may pave the way for a change in the law as it will still be open to the man to bring a legal challenge claiming that the law under the 2008 Act is incompatible with human rights, given the situation the he and his biological son now find themselves in.
Image credit: Norbert Eder, Flickr