Since May 2016, prospective single applicants for Parental Orders for surrogate children have waited with bated breath for the change in the law that permits them to make their applications, independent of their relationship status. At the end of last year, it was announced that a remedial order to the Human Fertilisation and Embryology Act 2008 (HFEA) had been placed before Parliament. However, five months have now passed and the question remains whether we are any closer to change.
In the case of Re Z (A child) (No 2)  EWHC 1191 (Fam), section 54 of the HFEA was declared to be incompatible with articles of the European Convention on Human Rights. As it currently stands, the HFEA limits applicants for Parental Orders only to those who are married, in civil partnerships or in ‘enduring family relationships’. A proposed remedial order amending section 54 to allow single parents to apply is now being considered.
Remedial orders can be made by ‘urgent’ or ‘non-urgent’ procedures and the proposed order has been deemed ‘non-urgent’. The procedure involves an initial 60-day period during which the proposed order is considered by Parliament and representations can be made by interested parties. Following this, the government has an opportunity to respond to representations and place a final draft of the order before Parliament for a further 60-day period. By the end of this second 60-day period, the order must be approved by both Houses.
Having been placed before Parliament at the start of December, the proposed order has completed its initial 60-day period and the Joint Committee on Human Rights has published its analysis of the draft and recommendations for the final form. We now await the government’s response and for a final draft to be placed before Parliament for the second 60 days. Given the points raised by the Committee (which I consider below), it could be some time before a final draft is ready for Parliamentary approval.
The Committee’s report, published on 2 March 2018, raises two main concerns:
- The first is that the current draft order allows for one person to apply for a Parental Order, but only if they are not in an enduring family relationship. This has the effect of forcing the partner of a single applicant to be a part of the application and therefore be legally recognised as the parent of the child. The Committee considers that relationships vary broadly; there could be various reasons why a partner would not want to be a part of the application. For example, the relationship may be relatively new, or going through a rough patch. The HFEA will therefore continue to be discriminatory if single applicants must prove any relationship they may be in is not ‘enduring’.
- The second main concern is that the current draft order allows for applications from single applicants even though they are married or in a civil partnership if they have separated, but only if that separation is likely to be permanent. The Committee was unclear why this was a requirement; particularly because it is almost impossible to prove and would prevent single applicants from making their application if the partner from which they are separated is unwilling to cooperate.
In its current form, it seems the draft order may not be fit to correct the discriminatory nature of the HFEA. However, if the government is able to act quickly on the Committee’s recommendations and a final draft is placed before Parliament promptly, we may see the new section 54A coming into force in the latter half of this year, though no definite timeframe exists.