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Surrogacy and the Single Parent - the Human Fertilisation and Embryology Act…

Gemma Kemp

Associate solicitor Gemma Kemp, in our leading Family law team, highlights recent changes to the to the law surrounding surrogacy and single parents.

The New Year brings an important and welcome change to the law surrounding surrogacy, thanks to The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 No. 1413, which came in to force on 3 of January 2019.

As of 3 January, single biological parents who use a surrogate to have a child can apply for a parental order which, if granted by the courts, gives legal recognition to them being the child’s parent.   Prior to this change, only couples who were married, civil partners or in an “enduring relationship” could apply for a parental order. 

Until a parental order is made, the surrogate mother (and her spouse if she is married) are recognised in law as being the child’s parent.  This is the case, even if the surrogate mother has no biological link to the child. 

The following statutory requirements are to be satisfied before the court can make a parental order:

  1. that the child, who is the subject of the application, has been carried by a woman, who is not one of the people applying for the parental order;
  2. that the child is biologically related to at least one of the applicants;
  3. that the application for the parental order is made within 6 months of the child being born;
  4. that the child is living with the applicant(s);
  5. that the applicant is domiciled in the UK;
  6. that the applicant is aged over 18;
  7. that the legal parents (i.e the surrogate, and possibly her spouse)give their consent to the parental order being made.

The law in England and Wales is widely criticised as being ‘unfit for purpose’ when it comes to surrogacy related matters.  Although this change is a step in the right direction, there are still many changes that can be made to improve and clarify the laws surrounding surrogacy. 

The Law Commission is currently undertaking a lengthy review, and their reform recommendations are due to be released in the spring of this year.  

If you require advice and assistance in relation to a family law matter, including advice on surrogacy, please contact our family department on 0118 951 6800.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.