Is surrogacy possible for single people?

For many years there has been understandable confusion surrounding whether single prospective parents can pursue surrogacy in order to create their longed-for family.

In short, there is no legal bar to single men or women entering into a surrogacy arrangement in the UK. Various restrictions apply in overseas destinations, although the US is the most accommodating, with some States having a well-trodden system for both single mums and dads.

However, despite the flexibility in the UK for single people to access surrogacy, there remains no satisfactory legal solution once their surrogate child is born. For couples (whether married or cohabiting) who pursue surrogacy, the parental order – a post-birth court order – provides them with full parental status in respect of their child, extinguishing this automatic entitlement from the surrogate (and her spouse).

Remarkably, current surrogacy legislation does not allow single people to make this court application, leaving their family legally vulnerable. This is in direct contrast to the law on adoption and fertility treatment, where legal solutions enabling single parents to exercise parental autonomy exist.

As things stand, there is only one option for single parents through surrogacy to have their status as their child’s sole parent ratified – adoption. They must apply to court to adopt their own child in the absence of the bespoke surrogacy-solution (the parental order) being available to them.

An adoption order granted in these circumstances works much like the parental order, by extinguishing the status of the surrogate (and her spouse) and reassigning this fully and permanently to the intended parent. However, it is an awkward fit for surrogacy and far from a straightforward resolution. The alternative is for single parent surrogacy families to muddle through in legal limbo.

A move towards change

Now, after years of inequality between single surrogacy parents and couples, one British father has challenged the law. In 2015 he applied as a single father to the High Court for a parental order, in respect of his son born through a US surrogacy arrangement. Whilst he is the sole legal parent in the US, having followed all requisite procedures there, his legal status in the UK is technically shared with the American surrogate mother (in fact, due to quirks in the legislation, she also has parental responsibility for the child – the ability to make decisions about his care to the exclusion of his biological father).

The President of the Family Division,  Sir James Munby, refused a parental order on the basis that the eligibility criteria laid out in Section 54 of the Human Fertilisation and Embryology Act 2008 were not met in their entirety (namely that the father is single – not married, in a civil partnership or cohabiting with a partner).

In a momentous move some months later, Sir Munby declared the current legislation preventing single parents being granted a parental order discriminatory and incompatible with the human rights of the parents and children involved. Whilst a legislative change is not a certainty at this stage, the government has now agreed to review the law surrounding parental orders.

It is anticipated that, following the recent judgement of Re Z (A Child) (No 2) [2016], this long overdue assessment will lead to modifications enabling surrogacy single parents the ability to have their sole parental status enshrined and ratified by our courts in the UK. This is, after all, a much needed move to reflect the modern reality of surrogacy.

Pursuing surrogacy as a single person

If you are a single prospective parent contemplating surrogacy, be encouraged that it is doable. However, there is a lot to consider. On the practical side you will need to find a surrogate, either amongst your friends and family or through a surrogacy organisation in the UK or agency abroad (note that some of the UK organisations discourage single parents due to the current lack of solid legal remedy after birth) and also arrange treatment with donor sperm or eggs.

If you source a donor through a UK licensed clinic, your child will then have rights to discover the identity of their donor from age 18. If you need both donor eggs and sperm, your legal position becomes more challenging, since the parental order (even if this does become accessible for single people) will not be available to you and a more creative solution will need to be found.

For more information and advice please contact Nicola Scott, our specialist fertility lawyer, on 01305 756323 or nicola.scott@porterdodson.co.uk

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