I was delighted to be interviewed on BBC London 94.9 ‘Have Your Say’ programme with Vanessa Feltz this morning following the English High Court’s landmark decision to grant a solo father through surrogacy an adoption order. The English High Court described the case as ‘highly unusual’ and the law as a ‘legal minefield’.
The single man became a solo father through surrogacy after his mother carried a surrogate pregnancy for him. He conceived the baby (with his own sperm and a donor egg), now 8 months old, with the full support of his mother and father and following fertility treatment at a UK licensed fertility clinic. The solo father’s mother stepped in and carried the baby when he was unable to proceed with another female relative due to medical complications.
Under UK fertility law, the solo father’s mother and her husband were the baby’s legal parents at birth and were named as such on his initial British birth certificate. This meant that the baby and his intended solo father were treated as having the same legal parents and regarded as legal brothers. It was not illegal under UK law for the solo father to enter into a surrogacy arrangement and conceive a child through surrogacy. However, he was not eligible for a parental order (the legal solution for surrogacy in the UK which reassigns legal parenthood to intended parents) due to public policy restrictions which prevent single people from accessing the parental order regime. Only couples are eligible to apply for a parental order. As a result, the solo father applied to the English Court for an adoption order to be legally recognised as his baby’s legal father.
In the first legal case of its kind, the English High Court ruled that it was in the baby’s best interests for an adoption order to be awarded in his solo father’s favour. The case was supported by social services and followed careful consideration of child welfare issues, counselling and ethics assessment and approval at the UK licensed fertility clinic where treatment took place. The case involved complex legal issues and required very careful navigation because of a range of complex legal restrictions and offences set out in our domestic adoption and children law. The English Court ruled that it would not break the law to award the solo father an adoption order because he and his baby were ‘relatives’ in law.
In the fact specific circumstances of this case, the solo father successfully obtained an adoption order in respect of his baby. However, this case highlights the very real legal difficulties faced by single people who are ineligible to apply for a parental order, particularly those who do not have a relative willing to carry a surrogate pregnancy for them. English law also remains a minefield for those undertaking surrogacy abroad.
With increasing numbers of people turning to surrogacy as a family building option of choice, there has never been a greater need to get to grips with the relevant issues and improve awareness. Surrogacy can raise a whole host of tricky issues associated with developments in assisted reproductive technology, donor conception and inter-generational family building. Surrogacy becomes even more complicated when people’s family building plans do not fit neatly into the confines of UK fertility law. Family life in the UK and family building expectations are evolving rapidly. There are inherent tensions and conflicts between the positions of intended parents, surrogates, donors and surrogate born children which create a complex legal picture. Assisted reproduction is here to stay, but there is still much to be done to improve understanding and protect and support adults, children and families alike.
To listen to the whole interview click here.