In a recent child custody case, Britain’s top family judge has ruled that a single father has no rights over his own son. The child was conceived via surrogacy in the United States, using the man’s sperm and a donor egg. Unbelievably, in this case, the man had the full support of the surrogate mother, officials and social workers. However, despite this, the child, who is just over one-year-old, is currently a ward of court without a family.
Despite being officially recognised as the boy’s sole parent in Minnesota, where he was born, the judge has ruled that, here in the UK, the surrogate mother is the child’s only legal parent. The man, who paid £20,000 to the surrogate mother for the baby may now have to apply for adoption to become legally recognised as the child’s father.
In this case, the judge was bound by the Human Fertilisation and Embryology Act 2008 which dictates that parental orders can only be granted to couples (married, cohabiting, same-sex or heterosexual). The judge was, therefore, unable to grant a parental order to the father, despite the fact that the child is his genetic son.
An Act of Parliament would be required before this law could be changed. However, this law clearly discriminates against more diverse family structures and – as this case highlights – must be reformed. Indeed, the judge in this case did note that the man would be able to argue that the Act is ‘incompatible’ with his human rights.
While in America there are legally regulated processes to ensure that all parties entering into a surrogacy agreement are fully aware of what this entails, here in the UK no clear legal framework exists. Unfortunately, what this means is that where an agreement does get complicated, often the only option available is to take the matter to the courts. As well as looking at the failures of the Human Fertilisation and Embryology Act, the UK urgently needs a transparent and inclusive legal framework to deal with the matter of surrogacy.Find out more about our Family department