A father who won a groundbreaking legal case on Britain’s surrogacy laws has told the BBC he hopes he will soon be given the same rights as other parents.
As he is single and his baby was born to a surrogate mother, he cannot be given full parental responsibility.
Without parental responsibility, he cannot legally make key decisions about his own son, he said.
In May he won a High Court ruling and the government has said it will now update the law on parental orders.
The current law – the Human Fertilisation and Embryology Act 2008 – allows married couples, civil partners and couples in an “enduring family relationship” to apply for parental orders after a surrogacy arrangement – but not single parents.
In his first interview since the court case, the father, who the BBC is not naming, said he turned to surrogacy because “several of my friends started having children and that made me think about having my own child or children in some way”.
His son is now coming up to his second birthday and his identity was protected in court. We will call him Sam and we will refer to his father as Michael.
‘Legal limbo’
Michael told BBC Radio 4’s PM programme that he went to a surrogacy agency in the US, which put him in touch with a woman who has “got several children of her own, she’s been a surrogate previously and she was very was happy to help me out”.
He acknowledged that it did “perhaps” seem an extreme thing for a single man to have done, but said: “There isn’t that much difference to being a single dad, to being a single mum.
“Several of my friends have said that their friends have chosen to have a child while they’re single, but obviously for biological reasons, it’s much easier for them.”
His baby was conceived using his sperm and a third-party donor’s egg. However, due to differences between British and American surrogacy laws, the child was caught in an “international legal limbo”.
Michael’s solicitor, Natalie Gamble, said that in the US, Michael was recognised as the sole parent with full responsibility.
However, under UK law, the surrogate is treated as the legal mother and she is the only person in the UK who has the responsibility and authority to make decisions about the child’s day-to-day care.
This means that Michael and Sam face potential problems.
“When he’s older, I can’t choose which school he goes to. I took him to hospital once and they asked me ‘do you have parental responsibility?'”, he said.
“Not being able to apply for a passport was an issue – because I wanted to take my son away on a trip for a short period of time.”
Natalie Gamble added that if Michael died, there could also be “a very messy situation” as technically the surrogate would be left with the default responsibility of looking after the child.
For now, Sam has been made a ward of court. This means the High Court makes decisions about his care and safeguards his welfare, with Michael responsible for Sam’s day-to-day care.
Couples
The Human Fertilisation and Embryology Act 2008 allows parents in this situation to apply for a “parental order”, giving them full responsibility for the child but these cannot be granted to single people.
When the law was brought in, the then Labour government felt that due to the magnitude of surrogacy arrangements, they were best dealt with by couples.
It is not illegal for single people to have children in this way but it means they cannot get parental orders.
Michael knew this but still went ahead with the surrogacy.
“The British law allows surrogacy,” he said. “Whilst the government try to make it hard by not allowing the parental order to give me those rights, they clearly haven’t chosen for it to be illegal – otherwise they would’ve done so.”
His only option would have been to try to adopt Sam but instead he decided to challenge the law.
In May, the High Court found the law to be incompatible with the Human Rights Act.
Lawyers for the Health Secretary Jeremy Hunt accepted that the different treatment of single people could no longer be justified.
Health minister Lord Prior told Parliament in June: “The government has accepted the judgment. We will be looking to update the legislation on parental orders, and are now considering how best to do this.”
The Department of Health said this was likely to happen within the next 12 months.
No regrets
Michael told PM: “I’m very happy because it means that there’s a strong likelihood that the law will be changed and I will have full parental responsibility over my son.
“It will mean that I’ll be in the same situation as most families.
“I don’t see why there’s any difference between me having a child, albeit through surrogacy, and someone else choosing to have a child on their own. It’s the same situation – people choose to have the child because they want the child.”
He said the legal action cost him thousands of pounds, but he has no regrets.
Some MPs like Labour’s Rob Flello are concerned about the potential implications.
“What about the human rights of the child? For me that is absolutely paramount,” he said.
“And ultimately, all these issues around surrogacy, whether it’s parental orders or other legal requirements, are there because Parliament still has concerns about the implications in the long-term of surrogacy.”
Michael’s solicitor, Natalie Gamble, said many people were waiting for the law to change – she has more than 40 clients in a similar situation.
“In most cases people are muddling through, making decisions and hoping that no-one ever asks the questions to uncover the fact that they don’t have the status they need,” she said.
Read more: https://www.bbc.co.uk/news/uk-37108407
