Parental Orders – Key Facts

In the recent case of Sir James Munby, the president of the Family Division, dismissed an application by a father for a Parental Order solely in his favour in respect of a child born by surrogacy.

The application was dismissed on the basis that section 30 of the Human Fertilisation and Embryology Act (HFEA) 1990 made no provision for a Parental Order to be made in favour of a sole parent.

This appears to be a troubling decision in view of all the major strides taken in recognising the diversity of modern families. It is important to have a look at the law and some key facts regarding Parental Orders to understand decisions such as these….

•  made it possible for a married couple to apply for a Parental Order for a child born by surrogacy if either of them were the genetic parents. The Parental Order makes them legal parents.
• made Parental Orders available to civil partners or couples (same sex or otherwise) in an ‘enduring family relationship’

Key facts:

Section 54 HFEA 2008 sets out the criteria to be met for the making of a Parental Order:

• There must be . HFEA 2008 did not amend or change any of the criteria in HFEA 1990 regarding this requirement, hence the decision in Re Z above.
• The conception of the child must have been by .
• At least one of the applicant parents must be a 
• The application for a Parental Order must be made within starting from the day on which the child was born.
• At least one of the applicants must be .
• The surrogate mother (and any other person deemed to be a parent of the child; ie the surrogate mother’s husband) must 
• There can be for the making of the Parental Order. It is a criminal offence in the UK to enter into a commercial surrogacy agreement.

A worrying anomaly

HFEA 2008 came into force on 6th April 2010. A provision with the Act allowed children already living with same sex parents to be made subject to a Parental Order, provided that the application was made within 6 months of 6th April 2010. It now follows therefore that Parental Orders are not available to same sex parents of children born by surrogacy arrangements before 6th April 2010.

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