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Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

Posted on 17 January 2020

Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018

The Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 came into force on 3rd January 2019. It amended the Human Fertilisation and Embryology Act (HFEA) to introduce a new s.54A, permitting a parental order to be made in favour of one person. Prior to the amendment, the wording of HFEA required applicants for a parental order to be two people who were married, civil partners or in an "enduring family relationship". This led to a number of situations where children born through surrogacy were living with a biological parent, but without the parental relationship being legally recognised. The courts had previously considered section 54 of HFEA to be incompatible with Article 14 of the European Convention on Human Rights, when taken in conjunction with Article 8. 

Emma Willing comments: "This much awaited amendment to UK legislation has removed the discrimination which previously existed and precluded single parents from obtaining parental Orders in surrogacy cases.  Whilst the amendment is a positive development, there remains a pressing need for reform of UK surrogacy legislation. The principal UK legislation in respect to surrogacy law was enacted over 30 years ago, at a time when surrogacy arrangements were tolerated but not encouraged. The legislation has not yet adapted to changed attitudes, developments in science and the significant increase in demand for surrogacy arrangements. The Law Commission's proposals published in 2019 include the creation of a new pathway to legal parenthood which will allow intended parents to be the legal parents from birth, improving certainty both for them and the surrogate.  However, for intended parents entering into international surrogacy arrangements, the existing route to the recognition of legal parenthood would remain, requiring an application to court to be made following birth.  The Law Commission's final report is due to be published in 2021 and, whilst creating a global standard is impossible, it is hoped the final Law Commission recommendations will also assist intended parents seeking to enter into surrogacy arrangements abroad".

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