Surrogacy can be a life-changing option for single people hoping to start or expand their family. However, UK law has historically been restrictive, particularly for single parents.
Following a surrogacy arrangement, it is necessary for the intended parent(s) to apply for what is known as a parental order. This order transfers legal parenthood from the surrogate (and her spouse or civil partner, if she has one) to the intended parent(s).
Pre 2019
Prior to 2019, UK law only allowed couples to apply for a parental order following a surrogacy arrangement. This meant that all single parents, including those with a genetic link to the child, had no legal route to parenthood. Instead, they would have to consider adoption or remain in a legally complex situation where the surrogate retained parental responsibility.
The legal change in 2019
In response to growing recognition of the rights of single parents, the law changed in January 2019 through the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018. This amendment enabled single intended parents to apply for a parental order provided they met the key legal criteria, (as set out at Section 54 of the Human Fertilisation and Embryology Act 2008). One such requirement, which is particularly restrictive, is that the intended parent must have a biological link to the child. This means that if no genetic link can be established between the single intended parent and the child because they have relied on both sperm and egg donation, they will precluded from applying for a parental order. This situation, where the gametes of the intended parent will not be used to conceive the child, is often referred to as “double donation”.
It follows that the following categories of intended parents are automatically excluded from obtaining a parental order:
- single mothers who need to rely on egg donation
- single fathers who need to rely on sperm donation
- couples of any sexuality who need to rely on both egg and sperm donation.
However, for the purposes of this article, we will focus on the impact of the biological link requirement on single parents.
Double donation
More often than not, intended parents who opt to conceive a child through double donation do so because this is the only option available to them. It may be that they are unable to use their own gametes due to medical reasons, or they may wish to avoid transmitting a genetic condition to their child. Some women are unable to carry a child to full term, whilst others suffer from tokophobia — a fear of pregnancy or childbirth. These men and women may be fully committed to parenting but are forced to explore alternative legal routes, such as adoption, which can be time-consuming and complex.
By contrast, in some international jurisdictions, parental rights are established from birth, based on intention rather than genetic connection. This highlights a disparity between UK law and more progressive surrogacy frameworks in place in other countries.
The exclusion of single parents using double donation and calls for further reform
While the 2019 law reform was a major step forward, there have been calls for further reform to remove the barriers for single parents relying upon surrogacy and double donation.
The Law Commission conducted a recent review of the current laws in the UK governing surrogacy arrangements. They proposed a number of reforms to create a clearer, more inclusive system. In their report which was published on 29 March 2023 they considered the issue of double donation and the current requirement for there to be a genetic link between the child and the intended parent. After detailed consideration and consultation they recommended that a genetic link should continue to be a requirement for surrogacy arrangements where a parental order is sought.
Whilst the report acknowledged that “a genetic link was not a pre-requisite for the formation of a loving parent-child relationship”, ultimately the Law Commission formed the view that caution was needed in double donation cases.
Those opposed to removing the requirement for a genetic link expressed the following concerns:
- the removal of this requirement could lead to those rendered infertile as a result of the natural aging process being able to conceive a child through surrogacy and secure a parental order
- if there were no genetic link between the child and the intended parent they would effectively be “buying a baby”
- an increase in those having a child through surrogacy would lead to a reduction in the number of adults seeking to adopt a child.
In contrast, those in favour of allowing double donation made the following observations:
- double donation would be consistent with what is already permitted as far as assisted reproduction is concerned
- the current law discriminates against single women who may not be able to carry a child due to a lack of gametes
- where a parental order would be in the best interests of the child, the requirement for there to be a genetic link conflicts with the need to make the child’s welfare the courts paramount consideration.
Where does that leave single parents wishing to rely on double donation?
Although the Law Commission did consider allowing double donation in limited circumstances, such as where it is necessary for medical reasons, as highlighted above they ultimately concluded that the biological link requirement should remain in place. It therefore continues to be an insurmountable hurdle for a number of single men and women wishing to become parents via surrogacy and double donation.
For single intended parents considering surrogacy, it is crucial to seek expert legal advice to navigate the complexities of UK surrogacy law and explore all available options.
