UK Adoption Order granted to a single non-biological mother for a child born through a Californian surrogacy arrangement

3 March 2023

The recent English family law case of J v K (Adoption) [2021] EWFC 115 determined the legal parentage of a single non-biological mother for a child born through a Californian surrogacy arrangement. The legal proceedings involved an application by a solo mother (Ms J) for an adoption order under English law for her US born surrogate child. This was required because she was ineligible to apply for a parental order as she was not the child’s biological parent (having conceived by means of double donation – using a donor egg and donor sperm).

Ms J’s application

Ms J had sought to have a child for some-time. Following the breakdown of relationships, she underwent unsuccessful fertility treatment at a UK fertility clinic. Thereafter, she entered into an international surrogacy arrangement in the US. An embryo was created comprising a donor egg and donor sperm and this was transferred to a surrogate (Ms K) in May 2018. A successful pregnancy was established and baby L, a boy, was born in early 2019. Ms J then proceeded to obtain a US parentage order in respect of him from the California Court just after his birth.

Ms J and baby L remained in the US for around 5 weeks after the birth whilst they dealt with their immigration arrangements. Ms J obtained a US passport for baby L and they then returned home to the family home in South West London. Shortly after their return home, Ms J was contacted by the local authority who had been alerted by the UK Border Agency. This lead to two visits by a social worker, before their file was closed on the grounds that there were no child welfare concerns.

Ms J subsequently applied for a discretionary grant of British citizenship for baby L under the Home Office British Nationality Policy on Surrogacy. This application was granted in July 2019 and resulted in a British passport being issued for baby L.

Ms J then proceeded to apply for an adoption order in respect of baby L in the English Family Court to secure her legal parental relationship with him and become his recognised legal parent under English law. The Court gave leave for Ms J to apply for an adoption order, as the application was made before the 3-year residence requirement had been met under s.42 Adoption and Children Act 2002 (ACA 2002) and gave directions for the service of the order, application and a statement in support as well. Ms J’s solicitor’s subsequently wrote to the local authority to put them on formal notice of Ms J’s intention to adopt baby L pursuant to s.44 ACA 2002. This then triggered the preparation of a report by the local authority dated 1 December 2020. In the course of preparing this report, the social worker visited baby L monthly and met with Ms J on seven occasions, as well as undertaking safeguarding checks and taking up references and medical information. The local authority’s report was clear in its recommendation that an adoption order should be granted in respect of baby L. Thereafter, the Court gave directions for Ms J to file a further updating statement by 7 July 2021 and for the application, directions order and updating statement to be served on the local authority.

Adoption Order

The presiding judge, Mrs Justice Theis, went on to explain that

“The legal framework within which this application is being considered is because, as a matter of law in this jurisdiction under s.33 of the Human Fertilisation and Embryology Act 2008, the respondent, K [US surrogate], remains L’s legal parent, even though that position is different in the United States. If this court makes an adoption order it will serve to extinguish K’s legal relationship with L and will secure J as L’s legal parent. An adoption order will provide the legal security for L and J; the effect of such an order is made very clear by s.67(1) of the Adoption and Children Act when it states as follows:

“An adopted person is to be treated in law as if born as the child of the adopters or adopter”.

It has been described previously as a transformative order. It is. It has lifelong consequences, and so the court rightly has to ensure that it has all the information available to be able to make such an order. In considering whether it should make such an order the court is guided by s.1 of the Adoption and Children Act 2002, namely the child’s lifelong welfare needs, having regard to the matters set out in s.1(4)”.

Mrs Justice Theis proceeded to rule that the relevant criteria and procedural requirement had been met and that the grant of an adoption order would meet baby L’s lifelong needs and reflect the reality of his life, which was supported by the local authority report which stated:

“L is at the centre of the applicant’s life. She clearly enjoys parenting, is focused on L’s needs and tries to always be the best parent she can. L presents as a happy, contended toddler, strongly attached to the applicant and comfortable in his life. L is completely accepted and integrated into the applicant’s extended family. the applicant is aware [of] the circumstances of L’s life are different to most children and L will ask questions about his background. She will need to answer skilfully to help L comprehend and be comfortable with his past. Above all, J loves L and wants to become his legal mother throughout his childhood by granting of an adoption order.”

Specialist Family Law Advice

This legal ruling once again highlights the importance of resolving questions about legal parentage and the life-long significance that this has for both the child and parent in question. This case establishes that an adoption order can be an alternative legal solution to establish legal parenthood for a surrogate born child under English law, although this is only likely to be considered where the legal requirements for a parental order cannot be met. It also marks the first time that the English Court has granted an adoption order in respect of a surrogate born child following an international surrogacy arrangement. Moving forward, it is therefore an important legal ruling and pathway to consider for other families with surrogate born children whom are unable to meet the legal criteria for a parental order.

Need an expert family lawyer to answer questions or resolve issues about legal parentage? For further information and assistance please contact Louisa Ghevaert by email  or by telephone +44 (0)20 7965 8399.

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