Court sketch by Isobel Williams, www.isobelwilliams.blogspot.co.uk

If a single person has a child with a surrogate mother should that person be recognised as the child’s biological parent? The answer, according the recent case of Re: Z – a case heard in the summer – is no. Unusual? Seems so. It is even more confusing when you know that, should that same person be part of a couple, they can be granted a parental order recognising them as the child’s biological parents. Why is the position different for a couple over a single parent?

The facts of Re: Z are straightforward. The father of the child, and applicant in the case, arranged to have a child with a surrogate mother living in Minnesota. He paid $12,000 to the agency that brokered the arrangement and $33,000 to the surrogate.

Z (the child) was conceived with the father’s sperm and a third party donor’s egg implanted into the surrogate mother. Once Z was born the father secured a declaratory judgment from the court in Minnesota relieving the surrogate mother of her legal rights and responsibilities for Z and establishing his sole parentage for the child. However, when father returned to the UK that legal position was in effect reversed.

Under UK law the surrogate mother, despite the judgment in the US, is treated as being Z’s birth mother. The father, by contrast, does not enjoy any parental responsibility for his own child. This resulted in the unusual situation whereby no-one in the UK had parental responsibility for Z. The child was therefore made a ward of court during the course of proceedings.

So what can the father do?
So, how can the father acquire parental rights in respect of his child? The answer is by one of two routes: either by means of a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 or under an adoption order. Obviously, the father wanted a parental order. The real question was whether that was possible.

Whilst is it clear that is other areas of family law, such as adoption, an adoption order could in principle be made in favour of one person or a couple (that being a married couple, civil partners, or two people, whether of different sexes or the same sex living as partner in an enduring family relationship). Parental orders however (under section 54) can only be made in favour of a couple. Single parents cannot get a parental order, even for their own child.

But, can that actually be right? Father’s counsel, Elizabeth Isaacs QC, argued that the requirement that a parental order can be made only by two people was ‘a discriminatory interference with a single person’s right to private and family life’ and as such is inconsistent with articles 8 (right to a private and family life) and 14 (prohibiting discrimination) of the European Convention of Human Rights. Consequently, the section should give effect to the father’s rights.

The power to do that is contained at section 3(1) of the Human Rights Act 1998: ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention Rights’. So far, so possible.

However, the real question was whether the 2008 Act, which doesn’t apply to single parents, can actually be interpreted in that way. The House of Lords decision in Ghaidan v Godin-Mendoza [2004] made plain that ‘the meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed’.

Lord Rodger, in the same case, developed that theme saying that section 3(1) gives the court no power to ‘change black into white’. At paragraph 110 of the judgment he noted that ‘…in considering what constitutes the substance of the provisions or provisions under consideration, it is necessary to have regard to their place in the overall scheme of the legislation as enacted by Parliament’. So, what is the ‘general thrust’ of section 54(1).

Parliament’s opinion
The court turned to the Parliamentary debate surrounding the 2008 Act for answers. Dawn Primarolo, the Minister of State at the Department of Health in 2008, made the case for the government when answering the point that, if single people are able to adopt and to receive IVF, why can they not get a parental order in surrogacy cases?

She said that:

‘The difference is this: adoption involves a child who already exists and whose parents are not able to keep the child, for whom new parents are sought. That is different, which is why there is no parallel. IVF involves a woman becoming pregnant herself and giving birth to her child – there is not a direct parallel. Surrogacy, however, involves agreeing to hand over a child even before conception. The Government are still of the view that the magnitude of that means that it is best dealt with by a couple. That is why we have made the arrangements that we have.’

Against that backdrop the Judge in Re: Z concluded that section 54(1) could not be interpreted to give effect to the father’s rights. He said:

‘The principle that only two people – a couple – can apply for a parental order has been a clear and prominent feature of the legislation throughout. Although the concept of who are a couple for this purpose has changed down the years, section 54 of the 2008 Act…is clear that one person cannot apply. Section 54(1) could not be clearer, and the contrast in this respect – obvious to any knowledgeable critic – between adoption orders and parental orders, which is a fundamental difference of obvious significance, is both very striking and…very telling. Surely it betokens a very clear difference of policy which Parliament, for whatever reasons, thought it appropriate to draw…in 2008. And, as it happens, this is not a matter of mere speculation or surmise, because we know from what the Minister of State said in 2008 that this was seen as a necessary distinction based on what were thought to be important points of principle.’

So, as single parent the father could not bring himself within section 54(1) of the 2008 Act and therefore could not be granted a parental order. But, does the situation end there?

As a caveat to the judgment the Judge held the door slightly ajar for another attempt to look again at single parent parental orders in surrogacy cases. The father had not sought to argue that section 54(1) was incompatible with the European Convention of Human Rights, namely that the position in the 2008 Act prevented him from enjoying those rights and freedoms that enable him to enjoy a family life free from discrimination. That issue remains live and it is quite possible that father will seek a declaration of incompatibility. So, watch this space!