Family Law, Health Care / Medicine, Kids

I Want To Put a Baby In You: A Victory For The Singles Of The World (Or At Least Great Britain)

The pendulum of justice in England swings toward supporting “alternative” and “non-conventional” families.

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single dad father with baby kid childOn Friday, May 20, 2016, a high-ranking family court in England ruled against regulations that allowed only couples—but not single men or women—to claim parental rights to their babies born via surrogacy. The regulations had been passed as part of the Human Fertilisation and Embryology Act 2008 (HFEA). (Yes, fertilization is spelled with an “s” there.) But the family court held that preventing single men and women from securing parental rights to their surrogate-born children was discrimination on the basis of marital status, and thus a violation of the European Convention on Human Rights (link here).

The facts of the case are hard to follow, but frankly that’s the typical ART law case these days. In 2014, a single man from Great Britain used (1) his sperm, (2) an egg from an anonymous donor, and (3) a gestational carrier in Minnesota, to conceive and deliver his son, Baby Z. When the father and baby Z returned to Great Britain and the father attempted to secure his parental rights to his baby, things went a little, let’s say, bloody mad.

First, the father petitioned for parental rights under the HFEA. Although the law specifically referred to couples, the father’s attorneys asked that a judge “read down” the regulations—which I understand to be basically the British equivalent of a constitutional avoidance doctrine—to allow application of the regulation to a single parent as well. The judge declined. He then ruled that Baby Z was a ward of the state! The ruling also held that the American surrogate(!) could exercise parental rights over Baby Z, even though she had no genetic connection whatsoever to the child nor any interest in acting as his parent.

The judge, however, left the door open for a petition to be submitted requesting a “declaration of incompatibility.” That petition would try to get a court to rule that the regulations were incompatible with the UK’s obligations under international law and the English statute enacting that law. There’s no real equivalent to this procedure in the U.S., but imagine petitioning for a writ of certiorari on a constitutional question that wasn’t before the lower courts. Now imagine doing that same thing with a powdered wig on. Ok, that’s a petition for a declaration of incompatibility.

The father’s petition was heard on May 16, 2016. Notably, there was no opposing party. Even the English government—through Secretary of State for Health, the Right Honorable Jeremy Hunt—supported the father’s claim for parental rights over Baby Z.

Still, the court had to walk through the analysis involving the European Convention on Human Rights. Article 8, for instance, recognizes the right to respect for private and family life. But that wasn’t enough for either the English government, or the court. Since single people can just adopt children, Article 8 could be satisfied by steering singles in that direction, as opposed to letting them secure parental rights under the HFEA without going through the adoption process.

But the fact that Article 8 alone was insufficient to allow Baby’s Z father to utilize the HFEA to secure his parental rights was not the end of the story. Instead, the father’s attorney argued, and the English government and the judge agreed, that the HFEA requirement of coupledom for parents using surrogates violated a different provision—Article 14 when read in conjunction with Article 8. Article 14 provides that the rights secured by the convention “must be secured without discrimination on any ground such as race, colour, language, religion… or any other status.” The “other status” part includes being single. (And yes, the extra “u” in color is painful to write).

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On the other hand, the family court’s declaration is not the final say on the law. This isn’t America. Only Parliament can actually change the law. The court announces what the law is, but doesn’t itself have the power to change the law. Nevertheless, in 20 similar rulings during the history of Great Britain, 19 of them have resulted in a swift change of the law by Parliament. So odds are good that it is just a matter of time until the HFEA is appropriately amended to include singles.

The ruling, of course, is not without detractors. The Daily Mail quoted Labour MP Robert Flello as stating, “It’s a tragedy the rights of children are not first and foremost – the right of the child to have family around them.” And the publication noted that when the surrogacy law was debated, the Labour Health Minister argued that “Surrogacy involves agreeing to hand over a child even before conception. The Government is still of the view that the magnitude of that means that it is best dealt with by a couple.”

As we’ve seen throughout these columns, the disagreement as to who should have and raise children is a fundamental argument debated throughout the world. And naturally, the debate is widely fueled both by religious beliefs and moral objections. We are, however, unlikely to reach a global consensus anytime soon. For now, the pendulum of justice in England is swinging toward supporting “alternative” and “non-conventional” families.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.

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