The Joint Committee on Human Rights welcomes the Government's decision to correct a finding that the law on surrogacy is not compatible with human rights.
However, the Committee has a number of significant concerns about the Government's drafting approach and recommends that these should be addressed before the draft order is laid.
As the law stands, where a child is born as the result of a surrogacy arrangement, a couple can apply for a parental order within a period of six months after birth, providing that the gametes of at least one of them were used in creating the embryo.
A single person whose gametes were used to create an embryo carried by a surrogate cannot do so.
In Re Z (A Child) (No. 2)1 the court found this distinction between single parents and couples was incompatible with the right to private and family life and non discrimination under the European Convention on Human Rights 1950 (“Convention”).
In proposing the draft Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 the Government seeks to remedy this.
Committee concerned Government is introducing further discrimination
At the heart of this issue is the right to family life, and the right of children and their biological parent to have their relationship legally recognised following a surrogacy arrangement, whether that parent is in a relationship with another person or not.
The Committee is concerned that in correcting the current discrimination between single people and couples, the Government is introducing further discrimination by requiring that single applicants for parental orders should not be in an enduring family relationship.
The Remedial Order as drafted says that while a single person can apply for a parental order if that person is considered by the Courts to be in an enduring family relationship with a partner, then they can only apply for a parental order as part of a couple, and their partner will then be recognised as an equal parent of the child (whether or not that partner has any biological relationship to the child).
The Government has not explained:
- Why someone applying for an order must prove that they are not in an enduring family relationship in order to have their biological relationship with their child legally recognised under HFEA.
- Why a single parent’s partner with no biological relationship to the child (and no desire to be recognised as such a parent) must be recognised as that child’s parent merely in order for the biological parent to be so recognised.
The Committee notes that the State would not seek to create such barriers to the legal recognition of the relationship between a biological parent and child where there was no surrogacy arrangement involved.
The Committee considers that as currently drafted, the Order does not adequately remove the incompatibility with the Human Rights Act.
It fails to address the human rights of a child and his/her biological parent, where that parent also wants to assert the human rights associated with building an enduring family relationship without requiring their (new) partner to assert a non-existent quasi-biological relationship with a child.
The Committee is also concerned that as currently drafted a person who has separated from their spouse or civil partner would have to prove to the Courts that their separation is likely to be permanent.
Given that applications for parental orders must be made within 6 months of birth this may not be possible, and the child could be left in legal limbo.
Procedural requirements of the Human Rights Act 1998
The Committee considers that the procedural requirements of the Human Rights Act 1998 (“HRA”) HRA have broadly been met in this case.
The reasons relied on by the Government for proceeding by way of remedial order rather than by Bill are clearly capable of being sufficiently “compelling reasons”.
Further, remedying the incompatibility by way of a non-urgent order, rather than an urgent order, strikes a reasonable balance between the competing considerations of the need to avoid undue delay before remedying the incompatibility and the need to afford a proper opportunity for parliamentary scrutiny.