During the Covid-19 pandemic, much of the focus has been on shoring up existing delivery and, where possible, extending arrangements if it is not possible to re-procure.
The law is this area is primarily governed by the Human Fertilisation and Embryology Act 1990 (HFE 1990) and whilst the Act has been reviewed in both 2004 and 2007 and subsequently amended by the HFE 2008 the legislation in this area has not seen a significant overhaul since its enactment.
As the report highlights the need for reform in the area of surrogacy law is great and can no longer be ignored. The main area in which reform is needed, is the time limit in which parents can apply for parental orders. Currently, applications for parental orders can only be made between 6 weeks and 6 months after the birth of the child concerned. Anthony Collins Solicitors childcare team, headed by Jas Tamber , were recently successful in challenging the time limit imposed by the HFE Act and secured a parental order for the intended parents who had made their application after the 6 month time limit had elapsed.
Understandably this is the area of reform that is most frequently challenged. It can only be assumed that the need to challenge the time limit in which parental orders can be made is primarily due to the lack of awareness of intended parents. Problems can also arise if surrogacy arrangements have taken place with a surrogate mother being located outside of the UK. There are additional requirements in relation to the immigration status and entry requirements for the child etc. that can potentially lead to applications being made outside of the time limits imposed by the HFE Act.
A further significant area for reform, is that the law currently doesn’t allow for single parents to apply for a parental order. This is despite an intended parent being able to foster and/or adopt a child or in the case of a female intended parent, undergo IVF.
This can be even more frustrating when the intended parent is biologically linked to the child. In this scenario, a source of legal recourse would be for the intended parent to apply to the court under a child arrangement application. Any order made would be regulatory in nature, rather than transformative, and therefore would usually extinguish the day before the child’s 17th birthday. Alternatively, adoption could be considered by the intended parent, however this is not without its own difficulties.
The report also highlights that the law also requires one or both of the intended parents to have a genetic link to the child, in order to apply for a parental order. The report highlights that by comparison there is no such requirement for those who undergo IVF. This is because the law recognises the gestational mother as the legal mother of a child. This is both unfair and arguably a violation of rights to equality among other basic rights.
It is clear that as technology and science advances and as society becomes more accepting of non-traditional family arrangements that the need and want for review and reform will only grow and build momentum. It is fair to say that we here at Anthony Collins Solicitors are particularly interested and excited to see what developments are borne from this report and hope that reform in this area is soon to be forthcoming for the benefit of both the children and families involved.
For more information
Please contact Kadie Bennett
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