Single Parent Surrogacy Restrictions Challenged by UK Family Court Ruling

United Kingdom's High Court of Justice
International surrogacy agreements are often legally complicated arrangements. Variations in surrogacy laws from one country to the next can create a situation where the outcome isn’t clear in advance. Such is the case with the baby publicly identified only as “Z,” whose single father brought him home to the United Kingdom after contracting a surrogate in Minnesota.

An Initially Uncomplicated Surrogacy Agreement

Baby Z was born to a gestational surrogate in 2014. He was born through gestational surrogacy, which is legal in Minnesota. Z was conceived through in-vitro fertilization using his father’s sperm and a donor’s eggs. Both egg donor and surrogate were compensated for their time, efforts, and health risks undertaken by their involvement.

The procedure went like clockwork, up to the point where Z was brought home to the UK by his father.

Outdated Surrogacy Laws in the UK

According to the highest Family Court judge in the United Kingdom, Z wasn’t his at all—despite being born of an embryo produced with his own sperm.

At issue is The Human Fertilisation and Embryology Act 2008. Under this law, only a couple can be recognized as parents of a surrogate baby. Intended parents in the UK must apply for “parental orders” following the birth of a child to a surrogate mother. However, regardless of the recognition afforded Z’s father within the United States, the United Kingdom requires that two people file this application jointly.

The terms of the legislation specify a married couple, civil partners, or two individuals in another form of “enduring family relationship.” Because of this, Z’s father was denied parental rights, with the UK Family Court recognizing the surrogate mother and her husband as Z’s rightful parents. This came in a ruling handed down by Sir James Munby, Britain’s highest Family Court judge, which was made public in September of 2015.

Most of the identities of those involved in the case are still confidential, but the Daily Mail does relate some of the costs involved in Z’s surrogate birth. Among them are an £8,000 fee paid to the egg donor, and “more than £20,000” paid to the surrogate mother herself. In American currency, this works out to nearly $12,000 and more than $30,000 respectively, which are in keeping with average rates within the American surrogacy industry.

Sir James Munby was not unsympathetic in his judgment. His ruling was rendered in accordance with British law, which he asserted at that time could only be changed by Parliament. Because Z’s father is not legally responsible for his child, Z was officially declared a ward of the court—although he has been placed in his father’s care, as such.

A New Hope: Surrogacy Laws Deemed “Incompatible”

In response to Sir Munby’s ruling, Z’s father alleged that he was being discriminated against, on the grounds that he is single. The accusation brought about a new, more recent hearing in London, in which Sir Munby gave the case additional consideration. In conclusion, the Family Court judge ruled that Z’s father, saying that the 2008 legislation was “incompatible with human rights laws… [governing] respect for family life and discrimination.”

He ruled by way of a “declaration of incompatibility” in regard to his previous ruling. This does not equate to a favorable end result for the father of Z, but it does allow him to re-apply for parental rights without his status as a single father being taken into direct consideration.

Barrister Samantha Broadfoot, representing Health Secretary Jeremy Hunt, acknowledged the facts as Sir James Munby saw them. "It is accepted that there is a difference in treatment between a single person entering into a lawful surrogacy arrangement and a couple entering the same arrangement” said Broadfoot, though she added, “adoption has always been an available solution.”

Another representative of the Department of Health, speaking anonymously, has stated that the department understands and accepts the court’s ruling in this case. “[We are] looking into how best to go about the process of updating the legislation on parental orders.”