Re: Summer 2015 | Page 77

When can your biological son also be your sibling? using a donor egg and the biological father’s sperm, the embryo was then transferred into the biological father’s mother and she then carried the child and the child was born at full term. The biological father has looked after the child since birth. When the child was born under the provisions of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) the biological father’s mother and her husband were the child’s legal parents, despite not being the biological ones. When your mother is the surrogate to your child, of course. A single gay man wanted to have his own child and current fertility laws have come to the rescue. Mothers are often known for doing whatever they can for their children, but in this instance a mother has gone beyond what most mothers would do and has carried her son’s child for him. A child has been born following a surrogacy arrangement whereby the gestational surrogate was the child’s biological father’s mother. This is an unusual arrangement. It was entered into by the biological father, his mother and his mother’s husband after careful consideration, following each having individual counselling and with all the treatment being undertaken by a fertility clinic licensed by the Human Fertilisation and Embryology Authority (HFEA) who are required under the HFEA code to consider the welfare of the child before embarking on any treatment. The arrangement, whilst unusual, is entirely lawful. An embryo was created Now usually in the case of surrogacy upon the birth of the child the biological parents would apply for a Parental Order, which recognises them as the child’s legal parents. However, under current legislation in situations where a child has been carried by a woman other than the biological mother a Parental Order can only be made by the court if certain criteria are met, one of which is that there have to be two applicants who are either married, civil partners or are two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other. A single person, as the biological father is in this instance is, was therefore unable to apply for a Parental Order. A single person caring for a child born via surrogacy is able to apply to adopt though, subject to the strict legal provisions in relation to adoption. The biological father in this instance has therefore had to apply to adopt his own son. This has not been without its own legal challenges with the Judge who granted the Adoption Order having to carefully interpret and apply the law to ensure the adoption was legally possible. Due to the complex nature of fertility laws it is imperative that single parents contemplating parenthood through surrogacy obtain comprehensive legal advice or they could risk of inadvertently committing a criminal offence. In accordance with the law it is a criminal offence for private adoptions without using an adoption agency. In this case, a criminal offence had not been committed though because the relevant statute provides that an offence is not committed if the prospective adopters are parents, relatives or guardians of the child, or a partner of a parent of the child, and therefore given that as a matter of law, the biological father was in fact the legal brother of the child, the court found that the biological father was a “relative” within the meaning of statutory provisions. The process under which a single parent can achieve legal recognition as a parent is a legal minefield, and they therefore, as the Judge highlighted in this case, need to ensure that all the appropriate steps are undertaken to secure lifelong legal security regarding their status with the child. It remains to be seen whether it will be argued that the current prohibition on single parent applicants for a Parental Order is not compatible with the European Convention on Human Rights, particularly if the application is made for example by a single woman who is able to use her own eggs but is not able to carry the child. Parliament may therefore cons