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A ground-breaking high court decision will lead to a change in current legislation that prevents single parents from applying for parental order after surrogacy in accordance with the Human Fertilisation and Embryology Act 2008.

In the recent case Z (A Child) (No 2) [2016] EWHC 1191(Fam) on 20/05/2016, a biological father challenged the wording in S.54 of HFEA.

The father in this case had a child using a surrogate mother in America. In a surrogacy arrangement in America, the father would be recognised as the sole legal parent with parental responsibility. Conversely, in the UK, the surrogate mother would be recognised as the sole legal parent.

Therefore, the father applied for parental responsibility in accordance with S. 54. Human Fertilisation and Embryology Act 2008. However, the current UK law and S.54 stipulate that only ‘two people’ can apply for such a parental order, rendering his application unsuccessful. The claimant argued that the wording is incompatible with the HRA.

The Secretary of State for Health acknowledged that, whilst adoption is an available solution for single parents to gain parental responsibility, the current provisions of S.54 (1) and (2) of HFEA 2008 are incompatible with Article 14 in conjunction with Article 8 of the HRA. The declaration of incompatibility was based on the facts that there is a difference in treatment of a couple involved in a surrogacy agreement and a single person, and that this incongruity is discriminatory.

This was the argument of the father who compared his situation to that of single mothers who would not experience the same difficulties when choosing to become single parents. The President held that s 54 of the HFEA 2008 could not be read down to enable a parental order to be made in respect of a single applicant. The father now sought a declaration of incompatibility in accordance with s 4 of the Human Rights Act 1998.

The government will now consider how best to update the legislation on parental orders in order to remove this discrepancy.

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