Surrogacy and Single Parents Following Re Z
| Author | Philip Bremner |
| Published date | 01 May 2017 |
| DOI | 10.3366/elr.2017.0421 |
| Date | 01 May 2017 |
| Pages | 281-286 |
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.
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
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.
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”.
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