Elizabeth Isaacs QC and Adem Muzaffer secure declaration of incompatibility in landmark surrogacy case
UK’s top family judge declares that UK law should give single parents through surrogacy the same rights as couples.
Sir James Munby, the 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.
The case was brought by the biological father of ‘Z’, 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 court denied Z’s father a UK parental order (which would extinguish the responsibilities of the surrogate and lead to the issue of a birth certificate for Z in the father’s name), because only couples, and not single people, are permitted to apply. The court ruled that the surrogate who had carried Z (who lives in the USA, is not his biological mother and has no legal status there) had sole decision-making rights in the UK. Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care. The High Court has now said that that decision, although legally necessary, was incompatible with the father’s and the child’s human rights, and that the law discriminates unfairly against both the father and Z.
In an unprecedented move, the Secretary of State for Health (having seen the father’s arguments) conceded that the law was incompatible with human rights legislation and did not oppose the father’s application. 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 and to date all but one of the 20 final declarations made by the court under the Human Rights Act have prompted legal change.
Responding to today’s judgment, Z’s 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.”
Elizabeth Isaacs QC, leading counsel for the father, said: “Declarations of incompatibility are rarely made, so this is a very significant decision. Having consented to the declaration, there is no reason why the government should not take swift action to change the law. We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible.”
Natalie Gamble, solicitor for the father whose firm specialises in surrogacy cases, said: “This child, and dozens of others already born to single parents in the UK, need rescuing from legal limbo. It is preposterous that the biological parents of loved and wanted children cannot be recognised as legal parents. The UK has a proud tradition of taking a progressive approach to assisted reproduction and non-traditional families, and this is a glaring anomaly which conflicts with our most fundamental values of protecting children’s welfare.”
The ruling comes amongst a growing body of voices calling for a more wide-ranging review of UK surrogacy law, which has not been updated since the 1980s, and which does not recognise surrogacy agreements and instead treats the surrogate and her husband as the legal parents. In a Parliamentary debate in October 2014, Jessica Lee MP said UK surrogacy law was “outdated, limited and in places illogical”. Last week Baroness Warnock, the architect of the UK’s surrogacy laws in the 1980s, told Radio 4 Woman’s Hour that she had ‘got surrogacy law wrong’ and that parents through surrogacy should be recognised as the legal parents of their children from birth.
Helen Prosser of Brilliant Beginnings, a leading non-profit UK surrogacy agency which helps parents through surrogacy both in the UK and the USA and is campaigning for legal reform, said: “The discrimination against single parents is a pressing issue and we are delighted at today’s ruling, and the government’s sensible approach in supporting it. However, there are also other significant problems with UK surrogacy law, which is failing children and driving increasing numbers of parents to enter into surrogacy arrangements overseas. UK law on surrogacy is woefully outdated and out of step with modern reality, and we hope that this ruling will also highlight the need for a more thorough review of surrogacy law.”
20 final declarations of incompatibility have been made by the court since the implementation of the Human Rights Act 1998. All but one have resulted in the law being changed.
Parliamentary guidance makes clear that where a declaration is made, the government is expected to respond swiftly and fully. The Ministry of Justice should be notified and the government should set out their plans to remedy the incompatibility within four months.
It is not known how many children are born through surrogacy to UK parents. 295 parental orders were made in 2015 according to CAFCASS figures, but these statistics do not represent the full picture as not all parents apply for parental orders. Estimates of the true numbers of children born through surrogacy are up to 1,000 to 2,000 per year. It is not known how many of these are born to single parents.
Under UK law, the woman who gives birth to a child (and if she is married, her husband) are the legal parents of a child born through surrogacy. The court can make a parental order under section 54 of the Human Fertilisation and Embryology Act 2008, which permanently extinguishes the surrogate’s status, makes the intended parents the child’s legal parents under UK law, and triggers the issue of a British birth certificate for the child. To obtain a parental order the parents must meet various criteria, including that one or both of them is the child’s biological parent, and the surrogate consents. There must also be a welfare assessment by CAFCASS (the Child and Family Court Advisory and Support Service). From 1994 until 2010 only heterosexual married couples could apply for a parental order. That was extended by the Human Fertilisation and Embryology Act 2008 (which came into force in 2010) to include unmarried and same-sex couples.
- The case citation is Re Z (A Child) (No 2)  EWHC 1191 (Fam): www.bailii.org/ew/cases/EWHC/Fam/2016/1191.html
- It follows the case of Re Z (A Child: Human Fertilsation and Embryology Act: Parental Order  EWFC 73 (Fam): http://www.bailii.org/ew/cases/EWFC/HCJ/2015/73.html
- Parliamentary guidance on response to declarations of incompatibility: http://www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/85/8509.htm
- Parliamentary debate on surrogacy reform, October 2014: http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm141014/halltext/141014h0001.htm
For further information please contact:
- Natalie Gamble Associates – 020 3701 5915, firstname.lastname@example.org
- Elizabeth Isaacs QC (leading counsel), Adem Muzaffer (junior counsel) and Natalie Gamble (solicitor) are available for comment and interview.