Years of campaigning, a High Court case and a snap General election later and we finally have sight of the surrogacy reforms being laid before parliament.
The Human Fertilisation and Embryology (Parental Orders) Regulations 2018 were laid before Parliament on Thursday and will now progress through Parliament for further scrutiny.
The purpose of the new legislation is to set out the legal framework for Parental Orders and to ensure that the law is compatible with the European Convention of Human Rights, specifically to no longer discriminate against single applicants, following the case of Re Z when it was held that the current law was incompatible with the Convention.
The Act is being amended to allow for one applicant to apply for a parental order
Parental Orders are the legal process under which children born through surrogacy have their parenthood assigned to their intended parents. Parental orders are currently made under the Human Fertilisation and Embryology Act 2008. The Act is being amended to allow for one applicant to apply for a parental order, and in order for that to happen in practice, a new set of regulations are required to bring it into force.
That is where this new piece of legislation comes in.
The legislation is not intended to make any change to how a parental order operates and the effect of a parental order, as provided for by the 2010 regulations, remains unchanged. This provides a framework for the successful transfer of legal parenthood from the surrogate to the intended parent or parents.
In terms of the law in Scotland, reference should be made to Schedule 2 of the Regulations which applies here. This sets out the provisions of the Adoption and Children (Scotland) Act 2007 which are to be applied as modified, the full terms of which can be read here (http://www.legislation.gov.uk/ukdsi/2018/9780111174715/contents).
Surrogacy is a different process and requires to be considered differently
Aside from bringing the law into line to allow for single parents to obtain parental orders, there are no major changes being brought in through this legislation. The government has acknowledged in its explanatory notes that many organisations (BTO included) are opposed to adoption law being used as the basis for parental orders, being that surrogacy is a different process and requires to be considered differently. That is, of course, an issue being considered by the Law Commission and the Scottish Law Commission’s joint review of surrogacy law more generally.
This means that it is likely that these regulations may be further revised in the near future.
A baby step in the right direction
In the meantime this is a baby step in the right direction, meaning that (once approved through Parliament), single parents will no longer be discriminated against when applying for a Parental Order for children born through surrogacy. Importantly, there are plans to allow the legislation to be applied retrospectively, and single parents who previously would have been unable to apply for a Parental Order will now be able to do so for a period of 6 months after the law is changed. We will keep you up to date about when that happens.