UK waits for law reform after genetic mother ineligible for legal parenthood

A woman has been denied legal parenthood of her surrogate-born child because she is single, despite being the genetic mother.

The child was born in early 2017 as a result of a surrogacy arrangement. The commissioning parents – who are also the genetic parents of the child – separated during the surrogate's pregnancy, and the father no longer wants to be involved in the legal proceedings or upbringing of the child.

The child has been cared for by the intended mother since the birth, but the surrogate is still considered the legal parent – a situation that neither woman wants. Under UK law (Section 54 of the HFE Act 2008), the woman who gives birth to a child is always considered the legal parent, and a parental order is required to transfer the legal parenthood when a baby is born to a surrogate. However current law only allows a parental order to be granted to a couple (married, civil partners or cohabiting) and the intended mother is now single, so she does not satisfy the legal requirement.

Thus the child has no legal relationship with his genetic mother who is raising him: his legal parents are the surrogate, and his genetic father who he has never met.

Mr Justice Keehan, hearing the case was not unsympathetic to the situation, but was bound by law. He explained that in a previous case (Re Z (A Child) (No.2) [2016] EWHC 1191 (Fam)) the President of the Family Division of the High Court declared the current law incompatible with the European Convention on Human Rights because the applicant in that case (a single intended father) was prohibited from obtaining a parental order on the sole ground of his status as a single person as opposed to being part of a couple (see BioNews 852). Following that declaration, Justice Keehan said, s54 has been under Parliamentary review, but the court cannot do anything until a remedial order is produced by government .

To explain why the change is so important to families, Justice Keehan quoted Sir James Munby, President of the Family Division: 'Section 54 goes to the most fundamental aspects of status and, transcending even status, to the very identity of the child as a human being: who he is and who his parents are… A parental order has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences.'

In the meantime, the judge explained it would be inappropriate for the mother to adopt a child who is biologically her own. The child will remain a ward of court living with his mother as he had been since birth, the application for a transfer of legal parenthood will have to wait until such a time as s54 is changed to accommodate single parents.