Question: When is the legal father of a child not the legal father of a child?
Answer: When he is a British single parent and he is the legal father of a surrogate child under US law but not UK 
law.
The father has been told by the UK High Court that legal parenthood rests with the surrogate mother…regardless of the fact that a court in Minnesota named him as the legal father.
This is because UK law – the Human Fertilisation and Embyrology Act 2008 – states that only couples can apply for a parental order when having a child through surrogacy. That is how Parliament framed the law.
So the father in question paid £28,000 for his surrogacy arrangement in the US but he is not the legal father in the UK – even though he is the biological father. The child was conceived using his sperm.
This case is a reminder that Britain’s surrogacy laws are already out of date and long overdue for review. The surrogacy laws in this country do not reflect the nature of modern society.
Central to the whole issue of surrogacy is a Parental Order. It is absolutely crucial because it confirms the child’s legal parents. Failure to secure such an order can leave the child in a legal grey area.
The father at the centre of this case applied for a Parental Order. He took his case to the High Court because he believed that UK law was discriminating against him simply because he was single.
Sadly, he lost – although there are other legal avenues still open to him including applying for a child arrangements order or possibly adoption, although neither route is straightforward.
But his case is a reminder that specialist legal advice is required when it comes to surrogacy.
For expert advice on surrogacy and fertility law, contact Coles Miller family law solicitor Richard Perrins, 01202 694891.
