The Law Commission’s proposals on surrogacy reform are a huge step forward in recognising the realities of modern-day families. However, they need to be extended to enable three or more people to be legal parents as the law needs to accommodate families in all of their complexities and differences.
If the surrogacy laws are going to change to privilege intention over biology, then there should be the facility to allow the “intended parents” to be each of those who are going to play a parental role.
When the Human Fertilisation and Embryology Act 2008 became law it rightly updated legislation to enable the non-biological mother in a lesbian couple to be recognised as a legal parent. The effect of sections 42 and 45 of that act, however, mean that “no man is to be treated as the father of the child”.
That cannot be right. Where a conscious decision has been made to have a child not with an anonymous sperm donor but rather, most commonly, with the help of a friend, often a gay man, why should that man be stripped of his right to be recognised as a legal parent?
The effect of these provisions means that a father in these circumstances has to apply for permission from the court to make an application to even to see his own child. That was never the intention behind the changes to the legislation and there is nothing in Hansard to suggest that the effect of this was discussed in parliament.
Two linked cases in 2013 concern this point — Re G and Re Z. It was argued that it was necessary to protect the “sanctity of the lesbian family”. The mothers argued that each of the fathers should not even be able to make that application to court for their children to see their own fathers.
It cannot be in a child’s best interests for the child’s relationship with the father to be restricted. Of course, if the father has chosen from the start to have no relationship whatsoever with his child, that is another matter.
What is needed is for men who agree to be a father in these circumstances automatically to have the status as a legal parent. The birth registration and certificate process should be amended to enable two or more parents to be named. The surrogacy reform proposals should be extended to deal with this.
There are other jurisdictions — for example, California — in which more than two legal parents have been recognised. And in this country parental responsibility — all the rights and duties that parents have — already can be shared between more than two people.