A child was born in the United States of America as a result of a gestational surrogacy arrangement involving an embryo created using the mother’s egg and donor sperm. The mother and father went on, amicably and with the consent of the woman who had carried the child, to obtain an adoption order in the United States and became the child’s legal parents. Having taken advice on the terms of a family trust that pre-dated the reform of domestic adoption law, the parents wished to make an application for a parental order pursuant to section 54 of the Human Fertilisation and Embryology Act 2008. The issue arose whether the mandatory requirement in section 67(1) of the Adoption and Children Act 2002 that the adopted child was to be “treated in law as if born to” the mother precluded the court from finding that “the child has been carried by a woman who is not one of the applicants” so as to meet the test in section 54(1)(a) of the 2008 Act for the making of a parental order.
On the parents’ application for a parental order—
Held, application granted. By virtue of section 66(1)(d) of the Adoption and Children Act 2002 and the Adoption (Recognition of Overseas Adoptions) Order 2013, the adoption that had taken place in the United States was a valid adoption under English law and, pursuant to section 67(1) of the 2002 Act, had the effect of requiring the child to be treated in law, both retrospectively and prospectively, as if born to the applicant parents. However, there was an essential distinction to be drawn between section 67 of the 2002 Act and section 54 of the Human Fertilisation and Embryology Act 2008 in that, while adoption (and section 67 in particular) was concerned with the status of the child, the 2008 Act was concerned with the factual criteria necessary for a court to have jurisdiction to make a parental order. There was no reason to depart from the approach set out in the established authorities (albeit they dealt with the impact of the status of adoption on other statutory provisions) of separating the legal status generated by an adoption from the underlying factual history. The fact that a child might be treated in law as being the child of their adopted parents did not alter the biological facts surrounding their birth. Such a conclusion was supported by the precise language chosen by Parliament in the drafting of section 54(1)(a) and the 2008 Act as a whole. It followed that, in the present case, the court was able to conclude that the child had been carried by a woman who was not one of the applicants. The other requirements of section 54 being met, and the making of the order being in the long-term welfare interests of the child, a parental order would be made. However, the act of making a parental order did not discharge the extant adoption order made in the United States, which remained recognised as a full adoption in England and Wales (paras 4, 15, 16, 18–22, 23–26, 29, 31).
Dorothea Gartland KC and Edward Bennett (instructed by Mills & Reeve LLP) for the parents.
Shabana Jaffar, solicitor (of CAFCASS Legal Services) for the child, by the children’s guardian.
Tom Wilson (instructed by Treasury Solicitor) for the Secretary of State for Education.
The surrogate and her husband did not appear and were not represented.