Sir James Munby, President of the High Court Family Division, has made a formal declaration that UK law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights.
In Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam) an application was brought by the biological father of a 21 month old boy born through a recognised US surrogacy arrangement who lives with his British single father in the UK. Last year, the High Court ruled that it could not grant a UK parental order (the order which is required to extinguish the parental responsibilities of the surrogate and to issue a UK birth certificate for the child), because at present, UK surrogacy law only allows couples, not single parents, to apply. The High Court ruled that the surrogate who carried the child had sole decision-making rights in the UK. The child was therefore made a ward of court.
The High Court has now said that the decision, although legally necessary, was incompatible with the father and the child’s human rights and that the law unfairly discriminates against both the father and the child.
The Secretary of State for Health has also conceded that the law is incompatible with human rights legislation. The government has not yet said whether it plans to take action to change the law. Although it is for Parliament to change the law, declarations of incompatibility from the High Court carry significant weight in prompting legal change.
The father of the child responded to the recent judgment and said:
‘I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.’
To read the full judgment click here: http://www.familylawweek.co.uk/site.aspx?i=ed160978