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