Surrogacy and Single Parents Following Re Z

AuthorPhilip Bremner
Published date01 May 2017
Date01 May 2017

In 2016 the Law Commission of England and Wales sought views on whether the law governing surrogacy was keeping pace with social change or was in need of reform.1 A decision is expected later this year on whether surrogacy will be included in the Law Commission's Thirteenth Programme of Law Reform. The key pieces of legislation regulating surrogacy, namely the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008 (the “2008 Act”), apply in both Scotland and England & Wales. Therefore, the outcome of the Law Commission's consultation will have implications in both jurisdictions.

One of the main issues the Law Commission has highlighted as potentially in need of reform is the courts’ lack of power to make parental orders under section 54 of the 2008 Act in favour of single persons. This issue arose in the recent case of Re Z (A Child: Human Fertilisation and Embryology Act: Parental Order) 2 and led the High Court to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. In Re Z (A Child) (No 2),3 the court held that section 54(2) is incompatible with article 14 of the European Convention on Human Rights (“ECHR”) taken in conjunction with article 8. This in turn prompted the Government to ask the Law Commission to consider including a project on surrogacy in its next programme of work.4 On the basis of the High Court's declaration of incompatibility, legislative review of this area is desirable and the Law Commission's consultation is, commendably, the first step towards this.

However, the High Court's decision to make a declaration of incompatibility rather than read down the provision to make parental orders available to single applicants seems somewhat arbitrary in light of the court's willingness to read down the other requirements, in particular the time limits, contained in section 54 of the 2008 Act. While the way the courts have rea down some of the other requirements arguably stretch the interpretative function of the court, I argue that it would not have been inconsistent with the court's flexible approach to the interpretation of section 54 to read down that section, in the interests of justice for all involved, so as to recognise a single parent following surrogacy, rather than making a declaration of incompatibility.5 Nevertheless, given that such a declaration has been made it is incumbent on the Government to bring forward proposals to amend the 2008 Act in order to allow a parental order to be made in favour of a single person.


There is a dearth of reported Scottish case law concerning parenthood following surrogacy. This is in stark contrast to the proliferation of cases coming before the courts in England & Wales. Nevertheless, parental orders following surrogacy are being sought and granted in Scotland. Alan Inglis notes that there has “been a steady increase in the number of completed surrogacy arrangements in Scotland – in 2011 there were a total of 15 parental order made in Scottish courts”.6 Furthermore, it seems unlikely that the Scottish courts would depart significantly from the approach taken in England & Wales. In C v S,7 for example, one of the few reported Scottish parental order...

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