Human Fertilisation & Embryology Act 2008: Remedial Order

Department of Health written statement – made on 29th November 2017.

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Photo of Philip Dunne Philip Dunne The Minister of State, Department of Health

We are today laying a non-urgent remedial order to allow a single person to apply for a parental order, which transfers legal parenthood after a surrogacy arrangement.

Surrogacy has an important role to play in our society, helping to create much-wanted families where that might not otherwise be possible. It enables relatives and friends to provide an altruistic gift to people who aren’t able to have a child themselves, and can help people to have their own genetically-related children. The UK Government recognises the value of this in the 21st century where family structures, attitudes and life-styles are much more diverse.

Provisions in the Human Fertilisation and Embryology Act 1990 allowed, where a child was born under a surrogacy arrangement, for the transfer of legal parenthood from the birth mother to the intended parents by means of a parental order.

These provisions were updated by the Human Fertilisation and Embryology Act 2008, which introduced new provisions to extend eligibility to same-sex civil partners and all couples in long-term relationships, where the relevant criteria were satisfied. This was further amended in 2013 and 2014 to include same-sex married couples.

The Government will now introduce legislation to reflect an equal approach for a single person and couples in obtaining legal parenthood after a surrogacy arrangement. Following a legal challenge to the 2008 Act in 2016, the family court made a declaration that the provision in the Human Fertilisation & Embryology Act 2008 which enables couples, but not a single person, to obtain a parental order following surrogacy is incompatible with Article 14 of the European Convention on Human Rights. Article 14 prohibits discrimination in the enjoyment of Convention rights on the grounds of a person’s status, and it was accepted that this could include a single person in this context.

Following consideration of possible legislative options, the Government considers that there are compelling reasons to amend the 2008 Act by order made under the power in section 10 of the Human Rights Act 1998 to take remedial action where there is an incompatibility with the Human Rights Act 1998. The Government also proposes to remake the parental order regulations in 2018 to reflect all technical amendments to secondary legislation arising from the remedial order.

The Government welcomes the opportunity to lay this remedial order to allow a single person the same rights to gain legal parenthood as couples. The order will allow a six month period where an existing single parent through surrogacy can retrospectively apply for a parental order.

It will be for the Joint Committee on Human Rights to scrutinise the order, take views from Parliamentarians and stakeholders and advise the Government and Parliament on the appropriateness of the order. The Committee will have 60 sitting days to undertake these considerations before the Government must review and respond. The Committee will then have a further 60 sitting days to consider and make recommendations to Parliament, before debates in both Houses.

This statement has also been made in the House of Lords: HLWS282