Monday, May 23, 2016

It was great to help! UK man overturns ban on single parents via surrogacy

England's top family law judge has overturned a law that said only  couples could undertake surrogacy. Sir James Munby, the President of the England and Wales High Court Family Division, has made a formal declaration that UK law discriminates against single parents with children born through surrogacy and is incompatible with their human rights.

The team at Natalie Gamble and Associates, who acted for the father,   (working with leading counsel Elizabeth Isaacs QC and Adem Muzaffer) has been fighting this important case and were delighted at the ruling.

 I helped in the case.

Some months ago, my friend and colleague Natalie Gamble, one of the leading UK surrogacy lawyers, sought my help in the form of expert evidence as to what Australian surrogacy law provided. I willingly did so.

Natalie Gamble also received help from other expert surrogacy lawyers- Richard Vaughn in the US and Sara Cohen in Canada, who gave evidence about surrogacy laws there.

It is delightful that my evidence and that of my colleagues helped obtain this outcome. The reality is that single intended parents are often discriminated against, for no apparent reason. In Australia, that discrimination is seen in the ACT, South Australia and, for men, in Western Australia.

The case concerns a British biological father of a 21 month old boy known as ‘Z’, who was born through a US surrogacy arrangement and lives with his single father in the UK. Last September the High Court ruled that it could not grant the father a UK parental order (the order needed to extinguish the responsibilities of the surrogate and to issue a UK birth certificate for Z), because UK surrogacy law only allows couples, and not single parents, to apply. The court ruled that the US surrogate who carried Z (who lives in the USA, is not his biological mother and has no legal status there) has sole decision-making rights in the UK. Z was made a ward of court, which means the court safeguards his welfare and makes decisions about his care.

The President of the Family Division has now declared that the law is incompatible with the father’s and the child’s human rights, and discriminates against them. In an unprecedented move, the Secretary of State for Health decided not to oppose the father’s application, conceding that UK law breached human rights legislation and consenting to the court making a declaration of incompatibility. Although only Parliament can change the law, declarations of incompatibility under the Human Rights Act are unusual and carry significant weight: only 20 final declarations have ever been made, and all but one have prompted the law being changed.  However, the government has not yet said whether it plans to push forward reform.
Responding to the judgment, Z’s father said: “I am delighted by today’s ruling which finally confirms that the law is discriminatory against both my family and others in the same situation. I persevered with the legal action because I strongly felt that my son should be in the same legal position as others born through surrogacy. I have a son who I love dearly and as part of this process there was a rigorous court assessment that confirms that I am a good parent. I am now eagerly waiting to hear what the Government will do so my son does not need to indefinitely remain a ward of court.”

Elizabeth Isaacs QC, his barrister, said: “Declarations of incompatibility are rarely made, so this is a very significant decision. Having consented to the declaration, there is no reason why the government should not take swift action to change the law. We hope that the law will be changed to enable a parental order to be granted for Z as soon as possible.”

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