22 Nov, 16 | by Iain Brassington
Guest post by Atina Krajewska, Rachel Cahill-O’Callaghan, and Melanie Fellowes
The World Health Organisation is currently considering a change in the definition of infertility according to which, it has been reported, “single men and women without medical issues [would] be classed as ‘infertile’, if they do not have children but want to become a parent.” Although the WHO has not to date officially confirmed these reports, the possible changes have been considered controversial and provoked heated responses in other UK media. One of the main points of contention was the possibility of opening fertility treatment to single men. Before we engage in discussions about the new WHO standards concerning fertility treatment, which – it should be stressed – have not yet been officially announced or adopted, it is important to shed some light on the legal situation of single men in the UK, who wish to become single fathers using fertility treatment. This entry is aiming to exactly that. (In respect of single women, see this.)
A single man wishing to have a child will have to use a surrogate and will either use the surrogate’s ovum and his sperm, or she will carry an embryo created by his sperm and a donated egg. The HFE Act 1990 (as amended by the HFEA 2008) and the Surrogacy Arrangements Act 1985 will therefore be the two most relevant pieces of legislation governing the area. Neither of these Acts expressly mentions single men as a separate class of patients.
The Human Fertilisation and Embryology Act 1990 has never prevented single persons from accessing ARTs. The Act and the Human Fertilisation and Embryology Authority’s 8th Code of Practice refers to a “woman”, a “couple”, and an “individual”, and the latter opens up the possibility for single men to access treatment. Consequently, should they be adopted, the new WHO guidelines would not affect the fundamental principles of the HFE Act 1990 (2008), which does not engage with questions of rationing and access to publicly funded treatment. It is also unlikely that it could affect the interpretation of these provisions of the Act that may be seen as creating invisible obstacles for single persons. (More here and here.)
A look at the 2008 HFE Act suggests that the legal position of single men is arguably weaker than that of single women (excluding women using surrogacy, who seem to constitute the most vulnerable and least protected group of patients). The amended version of s 13 (5) of the HFE Act 2008, which replaced “the need for a father” with the “need for supporting parenting” in the welfare of the child assessment, refers only to a woman and is now silent about the man. This change was rightly welcomed as enhancing equality and promoting alternative family structures in the context of ARTs. However, it has paradoxically weakened the position of single men. A surrogate woman who gives birth to a child would be recognised as a legal mother under the HFE Act and would only need to show evidence of a supportive network of family and friends. At the same time, the wording of s 13(5) weakens the claims of single men wishing to become parents by accessing fertility treatment.
The biggest challenge single men face in this context is the establishment of legal parenthood. Interestingly, the only situation in which a single man could be regarded as the legal father of the child would occur when he is the biological father, the surrogate mother is unmarried and not in a civil partnership, and no one chooses otherwise. (This rule is inferred from s 42, 43, and 44 HFE Act 2008, although none of these provisions mentions single men.) The realities of surrogacy will rarely allow for such a set of circumstances to occur. On top of this, the single male might also struggle to satisfy the requirement under s. 54(8) HFEA 2008 that no money or other benefit has been given or received for surrogacy, as the majority of arrangements will involve third parties who are not family members, and will usually involve a financial component. This is one of the reasons why most surrogacy arrangements involving single men will take place abroad. In these cases, the single man whose child was born as a result of a surrogacy arrangement through IVF/IUI will have to apply for a parental order or adoption. more…