8 September 2015

Debra Wilson 

A single man can adopt his surrogate born son, but cannot be granted a parenting order for him. Although a seemingly bizarre and inconsistent statement, the wording of the legislation allowed for no other outcome in a recent UK decision.

Z was born in August 2014 to a US surrogate. The applicant, his genetic father, is a UK citizen. Under UK law the birth mother is Z’s legal parent and the applicant must either apply for a parental order or adopt Z to create a legal relationship with him. A parental order was chosen, and subsequently declined due to the wording of the legislation.

According to s54 Human Fertilisation and Embryology Act, the court may grant a parental order “on an application made by two people…”. President Munby concluded that this language had been deliberately chosen in 1990 in the initial Act, and again reconsidered in 2008 in the current version. Parliament had not overlooked the fact that adoption by single people has been permitted in the UK since 1926. It had simply considered that a different approach was necessary in the unique circumstances of an application for a parenting order following a surrogacy arrangement. Commented Minister Dawn Primarolo, Minister of State, Department of Health:

“surrogacy is such a sensitive issue, fraught with potential complications… There is an argument, which the Government have acknowledged in the Bill, that such a responsibility is likely to be better handled by a couple than a single man or woman.”

The applicant argued that the requirement of two people ‘offended against one of the cardinal principles of 21st century family law that there should be no discrimination against increasingly different kinds of family which society is creating’ as well as being out of step with adoption legislation. The requirement of two people should therefore be read down to allow the application by a single person. While appearing to agree with the arguments, President Munby had to reach the conclusion that he ‘had no power’ to grant the order sought, even though the application was supported by the surrogate (the legal mother of the child by UK definitions) and social workers in both countries. Section 54, he commented, ‘could not be clearer’ and ‘Parliament, for whatever reasons’ thought it appropriate in 2008 to require two applicants. This was a ‘clear and prominent’ and a ‘fundamental’ feature of the legislation and a ‘cardinal’ or ‘essential’ principle of the legislation. Reading the legislation down was therefore not possible without ‘ignor[ing] a key feature of the legislation.

Despite the fact that the intended father’s application for parental order was supported by the surrogate mother and officials and social workers on both sides of the Atlantic, the order could not be granted. Instead, the boy was made a ward of the court. Adoption remains an option.