High Court allows parental order application despite existence of US adoption order

The President of the Family Division has determined the issue of whether or not the commissioning parents of a child born through a surrogacy arrangement in the USA, who had already adopted their child in that country, were nevertheless entitled to have a parental order granted in their favour in England and Wales.

In AB (a child), Re [2024] EWHC 586 (Fam) (21 March 2024), Sir Andrew McFarlane concluded: “I am entirely satisfied that the making of a parental order is in the child's long-term welfare interests. The making of the order confirms that the applicants are the child's parents in law, as they have always been in every other respect.”

The proceedings related to a child, 'AB', who was born as a result of a gestational surrogacy arrangement in the USA.

The commissioning parents applied to the court for a parental order pursuant to the Human Fertilisation and Embryology Act 2008, ['HFEA 2008'].

Setting out the background to the case, Sir Andrew said: “Apart from the need for the court to extend time, the applicants would be entitled to the order that they seek, which is amply justified on welfare grounds, save for the fact that, in 2022, the applicants adopted AB pursuant to an adoption order made in the USA.

“The question for this court is whether the existence of the USA adoption order, which is recognised as a full adoption in England and Wales, prevents the court from granting a parental order.”

The Family President noted that the surrogacy arrangement and the present application were “fully supported” by the surrogate mother and her husband.

The parents had been advised that there was a need for them to apply for a parental order with respect to AB, notwithstanding their status as their child's adopted parents.

“The need arises with respect to a family trust which predates the reform of UK adoption law in 1976,” said the Family President.

Turning to the legal context, Sir Andrew noted that under HFEA 2008 section 33(1), a surrogate mother is treated as the child's legal mother prior to the making of a parental order.

He said: “However, under s 33(2), the surrogate will not be treated as the child's mother as a matter of law if there has been an adoption. HFEA 2008, s 33 is therefore consistent with an interpretation of the 2008 Act which draws a distinction between the legal status of 'mother' and to the underlying factual determination required by s 54(1) upon a woman who carried the baby (during pregnancy).”

He added: “Rather than relying upon adoption to deliver the status of parenthood to commissioning parents following a birth through surrogacy, Parliament created the regime of parental orders under HFEA 1990 [predecessor of the 2008 Act] as being a more appropriate legal means of doing so. A parental order avoids the inappropriate outcome of a biological parent, following a surrogate pregnancy, adopting their own child [Re A and B (Children)].”

Turning to the requirements of HFEA 2008, s 54, the judge said he was “satisfied that the evidence establishes that:

1. The child has been carried by a woman who is not one of the applicants, as a result of the placing in her of an embryo or sperm and eggs or her artificial insemination, and that the female applicant's gametes were used to bring about the creation of the embryo [s 54(1)];
2. The applicants are married [s 54(2)(a)];
3. The application for a parental order was filed well outside the 6-month period provided for in s 54(3). I am satisfied that the reasons put forward explaining why this was so, namely a period spent living in the USA and parental status having been settled in accordance with US law by the adoption, are acceptable. I therefore direct that time for filing be extended so as to permit the application to proceed;
4. The child has always had their home with the applicants and that one of the applicants is domiciled in the UK [s 54(4)];
5. Both applicants are over the age of 18 years [s 54(5)];
6. The woman who carried the child and her husband have both freely, and with full understanding of what is involved, agreed unconditionally to the making of the parental order [s 54(6)];
7. All monies that have been paid with respect to the surrogacy are either reasonable payment for expenses or payments which the court should now, retrospectively, authorise [s 54(8)].”

The Family President concluded that the making of a parental order was in the child's “long-term welfare interests”.

He said: “The making of the order confirms that the applicants are the child's parents in law, as they have always been in every other respect.”

Finally, Sir Andrew commented: “I should make clear that it is confined to determining the single issue of whether or not the commissioning parents of a child born through surrogacy, who have already adopted their child, are nevertheless entitled to have a parental order granted in their favour under HFEA 2008. No other issue has been raised for determination. Whilst accepting that the difference between the Adoption and Children Act 2002, s 67, and HFEA 2008, s 54, one being concerned with status and the other with facts, enables the applicants to qualify for a parental order, the court has in no manner engaged in determining the legal impact on the status of the child as the result of his/her parents having the dual status of being parents under a parental order and being his/her adopted parents. The act of making of a parental order does not discharge the extant US adoption order, which remains recognised as a full adoption in England and Wales.

“It is also right to be clear that, although this application has been brought in order to enhance AB's status as a beneficiary of a family trust, the details of that trust have not been, and did not need to be, disclosed in the proceedings and any question of entitlement is, obviously, one for the trustees in the light of the outcome which is that AB is an adopted child, but that his/her parents also have a parental order with respect to him/her.”

Lottie Winson