UK Court rules that single parents are unfairly discriminated against with children born through surrogacy

A recent case has considered a single father’s inability to apply for a Parental Order in the UK.

Under UK law a woman who gives birth is a child’s legal mother. This applies even if the woman is a surrogate and is not biologically related to the child. 

The current law provides for the intended parents to apply for a Parental Order.  This transfers the legal rights from the birth mother to the intended parents of the child. It permanently extinguishes the rights of the surrogate.

In order to obtain a Parental Order, the law currently states that the applicant must meet a number of criteria, one of which is that he/she must be in a relationship, either living as partners, civil partners or married. The criteria as it currently stands means that an applicant cannot apply for a Parental Order if he/she is single.

This has recently come before the Court in Re Z (a child)(No 2)[2016]. This is a case where an application had been brought by the biological British single father of Z, a 21 month old boy born through a recognised American surrogacy arrangement. Z lives with his British single father in the UK. Last year, the Court denied Z’s father a UK Parental Order, purely as a result of him being single. He met all other criteria, but was not in a committed relationship. 

On 20 May 2016, the Court declared that this specific criteria in UK law is incompatible with Human Rights legislation.

The parties and the lawyers wait now with baited breath, to hear what the Government will do with this declaration, but given the declaration of incompatibility, it is hoped that the Law will now change to not discriminate against single parents in a surrogacy situation.  

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

Beverley Jones

Partner - Head of Family Department (Liverpool)

Heading the family team in Liverpool, I am a family and matrimonial expert who deals with all aspects of family law.