A formal declaration has been made by Sir James Munby, President of the High Court Family Division, which state that UK law discriminates against single parents with children born through surrogacy and is incompatible with their human rights.
His declaration comes in light of Re Z (A Child) (No 2) [2016] EWHC 1191 (Fam), which concerns a British biological father of a 21-month-old boy known as ‘Z’, who was born through a US surrogacy arrangement and lives with his single father in the UK.
In September 2015 the high court ruled that it was not possible to grant a UK parental order to the father of Z – an order required to extinguish the responsibilities of the surrogate and to issue a UK birth certificate for Z – as under UK surrogacy law only couples could apply; not single parents.
Subsequently the court found that the US surrogate who carried Z and who continues to live in the USA has sole decision making rights in the UK despite not being his biological mother and having no legal status there. Following this decision Z was made a ward of the court.
However upon review of the case Lord Munby has now declared that the law is incompatible with the father’s and the child’s human rights, and discriminates against them.
In a rare move that the Secretary of State for Health decided not to oppose the father’s application, conceding that UK law breached human rights legislation and consenting to the court making a declaration of incompatibility.
Declarations of incompatibility under the Human Rights Act are rare only 20 final declarations have ever been made, of which all but one has prompted the law being changed. The government has not yet confirmed whether it plans to push forward reform in this area.
Responding to the 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 whom 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.”