Why won't you let us be a family? Surrogacy and the need for reform.

Why won't you let us be a family? Surrogacy and the need for reform.

Following the publication of ‘Surrogacy in the UK: Myth busting and reform’ in November 2015, Kadie Bennett of Anthony Collins Solicitors looks at the issues and pitfalls with the current law on surrogacy arrangements that have once again come to the forefront of family law developments.

The law in this area is primarily governed by the Human Fertilisation and Embryology (HFE) Act 1990. Whilst the Act has been reviewed, in 2004 and 2007, and subsequently amended by the HFE 2008, the legislation in this area has not seen a significant overhaul since its enactment.

As the report highlights, the need for reform in the area of surrogacy law is great and can no longer be ignored. The main area in which reform is needed is the time limit in which parents can apply for parental orders. Currently, applications for parental orders can only be made between six weeks and six months after the birth of the child concerned. In 2014, Anthony Collins Solicitors’ childcare team was successful in challenging the time limit imposed by the HFE Act and secured a parental order for the intended parents who had made their application after the six month time limit had elapsed (Re X [2014] EWHC 3135).

Understandably, this is the area of reform that is most frequently challenged. It can only be assumed that the need to challenge the time limit in which parental orders can be made is primarily due to the lack of awareness of intended parents. This was recently highlighted again in the case of A & Anor v C & Anor [2016] EWFC 42, where the applicants requested that a short judgement was put into the public domain, to raise awareness and encourage other people in the same position as them to make applications to secure their legal relationships as soon as possible. Problems can also arise if surrogacy arrangements have taken place with a surrogate mother being located outside of the UK. There are additional requirements in relation to the immigration status and entry requirements for the child etc. that can lead to applications being made outside of the time limits imposed by the HFE Act.

A further area for reform is that the law doesn’t allow for single parents to apply for a parental order, despite an intended parent being able to foster and/or adopt a child or, in the case of a female intended parent, undergo IVF.

This can be frustrating when the intended parent is biologically linked to the child. In this scenario, a source of legal recourse would be for the intended parent to apply to the court under a child arrangement application. Any order made would be regulatory in nature, rather than transformative, and therefore would usually extinguish the day before the child’s 17th birthday. Alternatively, adoption could be considered by the intended parent; however this is not without its own difficulties.

The report highlights that the law requires one or both of the intended parents to have a genetic link to the child, in order to apply for a parental order. The report highlights that by comparison there is no such requirement for those who undergo IVF. This is because the law recognises the gestational mother as the legal mother of a child. This is both unfair and arguably a violation of rights to equality among other basic rights.

It is clear that as technology and science advances and as society becomes more accepting of non-traditional family arrangements that the need and want for review and reform will only grow and build momentum. It is fair to say that we, at Anthony Collins Solicitors, are particularly interested and excited to see what developments are borne from this report and hope that reform in this area is soon to be forthcoming – for the benefit of both the children and families involved.