25 August 2016
Allan Douglas graduated with an upper second class honours degree from the Law LL.B programme in July 2016. Allan will be commencing the BPTC at Manchester Metropolitan University in September 2016. His dissertation was supervised by Dr. Sarah Beresford.

My dissertation analysed the law surrounding surrogacy arrangements related to lone fathers and how it has fallen short. This law has been and continues to be influenced by outdated socially constructed ideals surrounding gendered aspects of parents and the family. It cannot be ignored that the opportunities made accessible by the advancements made in regards to surrogacy has intensified the need for the law to adjust or move away from these established norms in order to provide equal protection to all parents who seek to start families in such a manner.

Generally, today lone fathers are denied legal protection with regard to parental rights and therefore their right to create a family. Under the current law, married heterosexual couples are still viewed more favourably, as seen within s2(1) of the Children’s Act 1989. Within the current legal framework, the lone father is not necessarily entitled to any parental rights, whereas parental responsibility is something that all mothers have automatically. Moreover, these fathers are being forced to look for loopholes within the law and are made to adopt their own children with whom they have a biological link in order to acquire parental rights within the law. 

Furthermore, by taking into consideration cases such as Re K, D (A Minor Ward) (Termination of Access), Re G and the Human Fertilisation and Embryology Act 2008, and the recent case of B v C, it was found that the law within this area holds various discriminatory and contradictory aspects. Examples include the fact that the unmarried gestational mother is seemingly favoured over the biologically related father. Therefore, these intended parents are informed of the fact that the surrogate is said to have legal rights toward the child, even if she is not genetically related to the child.  Furthermore, any idea of creating a legal agreement between the intended parent and the surrogate is futile, due to the fact that these types of arrangements are not legally enforceable, regardless of whether or not an agreement has been entered into by all parties involved. Even under the more common circumstances in which a couple engages in a surrogacy arrangement, such provisions bring with them implicit dangers to the intended parents, this being due to the fact that these orders can only be made with the consent of the surrogate mother and her partner. If successful, this can culminate in the birth certificate of the child being issued with the intended parents’ names.

Such findings therefore offered the opportunity to analyse and take into consideration the law within the USA and the findings of the California Courts in the case of Johnson v. Calvert. This case found that the parent with the biological link should be given priority within the law and the surrogate in turn should be seen as merely a host.  Therefore, he/she who intended to procreate the child – that is, he who intended to bring about the birth of the child or he who intended to raise it as his own – is in such a case the natural parent of the child. Such intent, based on parenthood, would create the most certainty for these fathers and would be less discriminatory and more reflective of educated thinking. In addition, it would serve to eliminate the legal restrictions these men face when they seek to enter into surrogacy arrangements. If the law used the biological link between parent and child as opposed to the gestational parent as a basis for decision making, specifically in cases concerning lone fathers, it can be argued that there would be less confusion for such fathers due to the fact that the unknown status of the egg donor would quite simply leave the father as the only parent with such a link, therefore leaving these fathers as the only parents with legal rights.

In conclusion, there must be proactivity at the legal level when a new order of constructing a family or identifying oneself based on gender or sexuality is introduced at a social level. Furthermore, continuing such bias and denying a single man the right to acquire parental rights due to the view that only a couple can handle such a delicate scenario and the granting of such rights to couples is seen as being a clear “fundamental feature” or a “cardinal” or “essential” principle of legislation, which is arguably inaccurate and asinine.