Remedial orders are "fast-track" legislation made under the Human Rights Act 1998 to remove an incompatibility with Convention rights in primary legislation identified by either domestic courts or the European Court of Human Rights. This is a "non-urgent" remedial order, which means it will only take effect after its approval by both Houses of Parliament.
Purpose of proposal
On 29 November 2017, the Government laid its proposal for the Human Fertilisation and Embryology Act 2008 (Remedial Order) 2018 before both Houses of Parliament. The purpose of the Government's proposal is to remove the incompatibility of section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA) with Convention rights.
Section 54 of the Human Fertilisation and Embryology Act 2008 (Remedial Order) 2018
Section 54 of the HFEA currently only allows for couples and not single people to obtain a parental order following a surrogacy arrangement.
Parental orders transfer legal responsibility to the individual applying for the order and extinguish the rights of the birth mother.
Section 54 'not compatible'
In Z(A Child) (1)  EWFC 73, the High Court held that section 54 of the HFEA could not be interpreted as compatible with Convention rights: the question of who can be a parent is a fundamental feature of the legislation - to construe section 54 as applying to single people would not be compatible with the "underlying thrust of the legislation" [para. 37].
However, the Court held that the applicant father may wish to seek a declaration of incompatibility.
Consequently, on 20 May 2016, in Z(A Child) (2)  EWHC 1191 (Fam), the applicant submitted that section 54 was incompatible with the rights of father and/or the child under Article 8 (private and family life) or Article 8 taken in conjunction with Article 14 (non-discrimination).
The Government conceded that the provision was discriminatory against single people.
The Court therefore made an order that sections 54(1) and (2) HFEA are incompatible with the rights of the applicant (father) and second respondent (child) under Article 14 taken in conjunction with Article 8 insofar as they prevent the applicant from obtaining a parental order on the sole ground of his status as a single person [paras. 17-20].
However, the Court declined to express how the incompatibility should be remedied, stating that it is a matter for Ministers, not judges, to consider whether there were compelling reasons for a remedial order [para. 30].
The Government considers that there are compelling reasons to amend the HFEA by order made under the power in section 10 of the Human Rights Act 1998 to take remedial action.
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 proposed remedial order would 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.
Reporting on the draft proposal
The Joint Committee on Human Rights is required by its terms of reference to report to Parliament on any remedial order made under the Human Rights Act.
The Committee will report on the draft proposal for a Remedial Order within 60 days of its publication.
The Joint Committee on Human Rights invites submissions of no more than 1,500 words from interested groups and individuals, including:
- Whether the remedial order removes the incompatibility with Convention rights identified by the courts
- Whether there are "compelling reasons" to use the remedial order process
- Whether the non-urgent procedure is appropriate.
You can send a submission using the written submission form. The deadline is Monday 8 January 2018.
The Government's response including the proposed remedial order can be found here.
The Minister's written statement can be found here.