Surrogacy and step-parent adoption applications

A High Court judge has said that whilst many surrogacy arrangements work very successfully, a recent case before her provided a graphic illustration of the difficulties that can be encountered if the arrangement breaks down. Eleanor Suthern analyses the ruling.

The case of Z, Re (Surrogacy: Step-Parent Adoption) [2024] EWFC 20 (Theis J) concerned two applications made by X and Y in relation to the child, Z, aged 3. Firstly, to vary or discharge a child arrangements order (made in August 2021) and secondly, for a step-parent adoption in favour of X. Both applications were opposed by Z’s mother, G, but supported by the Local Authority and Z’s Children’s Guardian [1]. 

The facts

By way of summary, Z was born because of a traditional surrogacy agreement within this jurisdiction. This agreement was entered into by X and Y, a same-sex male couple and G, in 2019. G and Y are Z’s biological parents.

In August 2021 a consent child arrangements order was made at the same time as a parental order. The child arrangements order provided for G to have contact with Z every six weeks. In January 2022 X and Y suspended contact, and issued an application for variation or discharge of the August 2021 order. G was given permission to appeal the parental order. That appeal was successful and the parental order was set aside by the Court of Appeal in January 2023 (Re C (Surrogacy: Consent) [2023] EWCA Civ 16). The application for discharge or variation had been stayed, pending the appeal, it was restored and X’s application for a step-parent adoption was made in June 2023.

The relevant background of the case, including the events which led to each application being made, can be found within paragraphs 7-65.

Evidence

The court considered a vast amount of evidence from the parties and others.

X and Y filed joint statements and the detail included in those is included at paragraphs 66-103. Their position, to summarise, was that they sought an adoption order, did not advocate for a contact order, but would offer contact in line with the local authority’s and Guardian’s recommendations. If the court considered an order should be made, they would not oppose the order being made to have effect for five years, with an order under section 91(14). In addition, they were prepared to seek private therapeutic support [100].

G filed two statements; these are detailed from paragraphs 104-113. To summarise, G opposed the adoptive order being made. She wished to have parental responsibility to the extent of being notified about major health/wellbeing issues or if there were plans to leave the jurisdiction, either permanently or for longer than 6 weeks [112].

The court then considered the evidence of Dr Willemsen, who was instructed as a joint expert [114-125]. He noted “that the surrogacy agreement provides hardly any consideration to the emotional risks in entering into the agreement” [117]. When discussing therapeutic work, he stated that it can be effective if “X and Y allow themselves to question their behaviour” [123]. He recommended that with or without an adoptive order in place, direct contact should take place [123]. His contact recommendations from his first report are summarised at paragraph 124. Dr Willemsen filed an addendum report whereby he analysed the issues in context of whether he should hear the lay parties’ evidence before giving evidence himself. Within that addendum he considered each of the lay parties’ positions from Z’s perspective [125].

Ms Harvey, an independent social worker provided a report and an addendum, both of which are summarised at paragraphs 126-133. Her view was that a child arrangements order was more likely to be the subject of further litigation [130] and considers it important that X is recognised as Z father-in-law [131]. When addressing contact, she considers the purpose of such contact to promote Z’s identity, help him understand X and Y accept his connection to G, his biological mother, and enable Z to build trust with X and Y to ask questions about his heritage [132]. She considered it more suitable to have an adoptive order, as X and Y would be more likely to support and promote direct contact than way [132]. She outlined that a contact order should be direct twice yearly, and indirect twice yearly, with an order under s91(14) [132]. In her addendum report, she suggested 3-month intervals between direct/indirect contact [133].

The guardian’s position, Ms Pulbere, is outlined within paragraphs 134-143. To summarise, she recommended a discharge of the August 2021 order, a step-parent adoption order in favour of X that dispenses with G’s consent, and an order for Z to see G twice a year directly, and twice a year indirectly [143].

Legal framework

The judge outlined the legal framework at paragraphs 144-162. To summarise, the following statutory provisions were referred to:

• Section 1(3) Children Act 1989 and the welfare checklist.
• Section 51(2) Adoption and Children Act 2002 which relates to step-parent adoption.
• Section 91(14) Children Act 1989 which provides that on disposing of any application for an order under the CA 1989, the court may order that no application for an order may be made in respect of the child concerned by any person named in the order without leave of the court.
• The judge referred to caselaw when analysing the legal matrix.

Judgment

The judge heard detailed submissions on behalf of each party and received written submissions, a summary of which are outlined at paragraph 162-205.

The judge details her decision at paragraph 206-253.

In relation to contact, the judge considered that direct contact four times a year, including birthday or Christmas contact, strikes the balance of welfare needs and not interfering too much with the day-to-day lives of X, Y and Z. She supported two periods of indirect contact and updating information to be provided before direct contact [241].

The judge did not make the adoptive order, and in her view, “Z’s welfare needs do not require G’s consent to be dispensed with” [247].

The judge made a child arrangement ‘live with’ order in favour of X to ensure he is provided with legal security [248] and [250]. She limited G’s parental responsibility to her being notified of Z receiving life-saving medical treatment, Z moving home and permanently leaving the jurisdiction or for a period of 6-weeks if it interferes with G’s contact [250].

The judge made a section 91(14) order for a period of 3 years [252].

The judge concluded in saying that she hoped her decision would now mean the parties are able to focus on seeking the appropriate therapy and support to repair their relationships to ensure they are able to work together to ensure they meet Z’s welfare needs [253].

Eleanor Suthern is a barrister at Spire Barristers.

Taryn Lee KC, also of Spire Barristers, appeared on behalf of the Guardian, instructed by David Wilson Solicitors.