Are our surrogacy laws incompatible with human rights legislation?

But a judgment handed down last year by the President of the Family Division may finally see some long-awaited progress being made to the complexities that often blight surrogacy cases in this country.

Section 54 of the Human Fertilisation and Embryology Act provides that only couples are allowed to apply for a Parental Order (which extinguishes the parental responsibilities of the surrogate and gives a legal status to the commissioning parents). 

This has meant that a single parent who commissions a surrogacy arrangement cannot apply for a Parental Order and has increasingly led to the problematic situation whereby the resulting child is left in a state of legal limbo. The fact that a single parent can apply for an Adoption Order (which has the same outcome as a Parental Order but isn’t always an option in surrogacy cases) only serves to highlight how troublesome the law is.

However, the President has now made a formal declaration that English law unfairly discriminates against single parents with children born through surrogacy and is incompatible with their human rights. In a remarkable development, the Secretary of State for Health has also acknowledged that the law is incompatible with human rights legislation. Such declarations are rarely made and the judgment marks a significant move towards bringing English laws on surrogacy into check with modern-day family units.

Whilst it remains to be seen whether Parliament will take steps to remedy the law, it would be almost unprecedented for legislation not to be changed following on from a declaration of incompatibility from the High Court. As and when this happens, it will bring such much needed progress to this area of the law.