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.
However, here too, recent case law revealed “legal vulnerabilities” of single men. (See Re Z (a child) (HFEAct: parental order) [2015] 3 FCR 586 and Re Z (A child) (No 2) [2016] EWHC 1191 (Fam) on this.) Section 54(1) of the HFEAct 2008, setting out the principles concerning parental orders, makes it clear that a claim for a parental order has to be made by two people. This implies a couple, whether heterosexual or same-sex, and appears to exclude single men from being able to apply for the transfer of parenthood after having used a surrogacy arrangement in cases where the surrogate is in a recognised relationship, or if the birth of the child occurred abroad.* This issue was raised most recently in the case of Re Z (A Child) (No 2).
The issue before the court was whether parental orders set out in the HFE Act 2008 should be available for single parents, and whether they violate human rights. The President of the High Court Family Division held that the current position of section 54 (1) and (2) of the HFEA 2008 was incompatible with the human rights as guaranteed by Article 14 in conjunction with Article 8 ECHR. As observed by Lord Munby, the concept of what a couple is has changed over the years, but it has always been clear that one person cannot apply for a parental order. The difference between adoption orders and parental orders indicates a very clear difference of policy, which Parliament thought it right to draw in 1990 and again in 2008.
Although the court did not have to discuss the right or the eligibility criteria to access fertility treatment by single persons, the case does demonstrate that, although access to fertility treatment (including surrogacy) is not formally prohibited, in practice the provisions concerning parenthood enshrined in the HFE Act can produce exclusionary effects against single men. If single men are aware of this considerable obstacle to obtaining a parental order then they will be discouraged from pursuing access to ARTs.
The case of Re B v C (Surrogacy: Adoption) illustrates further problems inherent in an application for adoption of the child, the only possible option for the single man who wishes to obtain parental rights over his biological offspring. (More details here.) In this case, B’s sperm and a donor egg had been implanted into his mother, C. C was married to D (B’s father). When the child was born, C was regarded as the legal mother of child under s. 33(1) HFEA 2008, and D was the child’s legal father under s. 35(1). B wished to apply for adoption, as he was ineligible for parental orders (as a single man). The court examined the provisions of the Adoption and Children Act 2002, in particular whether a criminal offence had been committed by undertaking a private adoption, prohibited by s. 92 ACA 2002. The father of the child was exonerated on the basis of s. 92(3) and (4), which holds that an offence is not committed if the prospective adopters are parents, relatives or guardians of the child. In this case, B, the biological father of the child, was in fact also its legal brother and consequently a ‘relative’ within s.144 of the ACA 2002. If B had not been a relative (i.e. brother or uncle) then it is possible that B, C and D would have been guilty of offences under the Act. B was only the child’s brother in the eyes of law because B’s mother agreed to act as a surrogate for his baby – see this for more. The only other legally acceptable option would be to use a single man’s sister as a surrogate. It is difficult to imagine many situations of this kind occurring in future.
This situation is clearly unsatisfactory and undesirable. As demonstrated by the recent case law and this analysis, the current legal framework violates human rights of single men, preventing them from acquiring a legal recognition of the biological/genetic relationship with their offspring. It is thus clear that the British legal system has started to acknowledge the rights of single men in fertility treatment independently of the WHO, which – at least in the UK – should be seen more falling within the changing paradigm rather than bringing one. These issues are conceptually and practically distinct from questions concerning public funding and rationing, which is a topic for a different post. The fact that the number of single men remains small does not mean it can and should be ignored. In fact, it could be argued that the numbers remain small precisely because of the legal obstacles and ambiguities engrained in the legal and regulatory framework governing fertility treatment. The courts have refrained from providing Parliament with any directions or guidance with regard to the necessary amendments that would bring the law into line with the ECHR. As a result, further discussions about the best way of resolving the above inconsistencies are vital.
Upcoming workshop
These and other pressing questions over the Legal Status of Single Persons in Fertility Treatment in the UK will be discussed at a workshop held in London on the 7th of December 2016 at the British Academy. The workshop intends to generate further discussions between academic lawyers and other stakeholders about problems emerging in this area of law and medical practice. It aims to present the preliminary findings of a BA/ Leverhulme Trust Small Research Project currently carried out between Sheffield Law School and Cardiff School of Law and Politics and highlights avenues for further research. There is still a limited number of spaces left for those involved or interested in this area of theory and practice.
*This provision will only affect those single women using surrogates. These women seem to constitute the most vulnerable and least protected group of patients. Otherwise, a single woman who have used ART will be the legal mother under s. 33(1) HFEA 2008 when she gives birth to a child created with donor sperm.