On 3rd January 2019, a law was passed which finally gives single people the ability to become the legal parents of children conceived through surrogacy.
Under English surrogacy law, the legal mother of the child is the woman who carries and gives birth to the child, regardless of whether the child is genetically hers. The other legal parent is her spouse or civil partner, unless they did not agree to the conception.
The intended parents are the mother and father (or the two mothers or two fathers) who intend to be the parents of the child after the surrogacy. They are sometimes called the ‘commissioning parents’.
In order for intended parents to become legal parents, they have to apply to the court for a parental order under section 54 of the Human Fertilisation and Embryology Act 2008 (HFEA). A parental order is an order which the court may make conferring legal parentage and parental responsibility to the intended parents.
Section 54 of 2008 Act states that that an application for a parental order has to be made by two people who, under subsection (2), must be:
- husband and wife,
- civil partners, or
- living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.
This meant that only couples could apply for a parental order to fully secure their parentage after surrogacy.
Change to the law
While it has never been unlawful in the UK for a single parent to conceive a child with the help of a surrogate, it was not possible for a single intended parent to be recognised as the child’s legal parent, unless they adopted the child.
In the case of Z (A Child)  EWFC 73, section 54 HFEA was found by the court to be incompatible with the Human Rights Act 1998, in that it discriminated against single people who wanted to become parents.
On 3 January 2019, a law was passed which now allows single persons to apply for parental orders: The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018. This is a remedial order made under section 10 of the Human Rights Act 1998, which amends section 54 HFEA so that it is compatible with the European Convention on Human Rights.
We welcome this long awaited change in the law. Single people have long been able to adopt children and to conceive children in other ways. Now they will also have the choice to create their families through surrogacy, without discrimination by the law.