Single people seeking to have children through surrogacy are suffering unjust discrimination, the Family Division of the High Court has ruled. Until now, single British parents going through the surrogacy process were unable to apply for parental orders.
The High Court heard the case of a single man from the UK who used a third party egg donor and a surrogate from the United States to have a child. Upon bringing the child back to the UK, he discovered that the law did not consider him to be the child’s father. Under British surrogacy law, the birth mother is considered the legal parent regardless of either party’s parental intent.
Under US surrogacy law, the surrogate mother was not considered a legal parent either. The child became a ward of the state, while the father was left with a single option: to apply to adopt his own biological child.
Sir James Munby, the president of the Family Division of the High Court, presided over the case in London. He ruled that the current laws are discriminatory against single people and “Incompatible with human rights laws,” reported the BBC.
Surprisingly, the Secretary of State did not oppose the ruling. A Department of Health spokeswoman said, “We accept this judgment… We will be looking to update the legislation on parental orders, and are considering how best to do this.”
While a declaration of incompatibility under the Human Rights Act cannot change the surrogacy law, it is a promising indicator. Only 20 such declarations have ever been made, 19 of which resulted in a change in the law.
The child is now in his father’s care, and Sir Munby has given the father permission to apply for parental status. After the ruling, the father 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.”
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