Background
AB applied under section 51(1) of the Adoption and Children Act 2002 to adopt six-year-old WX, who was born in California through a gestational-surrogacy arrangement. The embryo was created using a donated egg and sperm from EF, AB’s then-partner. California pre-birth orders and the US birth certificate identified AB as WX’s sole legal parent, and France also recognised her in that capacity.
English law produced a different result. Under section 33 of the Human Fertilisation and Embryology Act 2008, the surrogate, CD, was treated as WX’s legal mother, while EF was his legal father because CD was unmarried. AB, despite caring for WX throughout his life, was not his legal parent or a holder of parental responsibility. She could not obtain a parental order because she had supplied no gametes. CD formally consented to the adoption, and EF—who lacked parental responsibility and therefore did not need formally to consent—did not oppose it. The local authority and WX’s Children’s Guardian supported the application.
The Court’s Holding
Mrs Justice Theis made the adoption order. The statutory requirements were satisfied: WX had lived with AB for the required period; the local authority had investigated and observed them at home; AB had given timely notice of her intention to adopt; the jurisdictional and single-applicant conditions were met; and CD, the parent holding parental responsibility, had consented.
The court held that adoption was better for WX than making no order and met his lifelong welfare needs. It legally recognised the family life he had always known, secured AB’s status as his parent throughout his life, and aligned his position in England and Wales with his status in the United States and France. Although the order extinguished CD’s and EF’s legal parenthood, the court accepted the Guardian’s assessment that it was unlikely to change WX’s daily family relationships or his continuing relationship with EF.
The court expressly considered the risk that WX might later experience rejection, confusion, or unfairness when he learned that EF had not wished to retain legal-parent status. It concluded that those issues could be addressed through continuing age-appropriate discussions about his conception, surrogacy journey, parentage, and family history, with therapeutic support if required. Child-arrangements and special-guardianship orders were inadequate alternatives because they would preserve the existing legal parenthood and expire when WX turned 18.
Key Takeaways
- Where the intended parent in a surrogacy arrangement lacks the biological connection required for a parental order, adoption may be the only available order that creates lifelong legal parenthood and extinguishes the status of existing legal parents.
- An adoption court must assess the consequences of severing a child’s legal relationship with a biological parent even when that parent lacks parental responsibility, does not oppose adoption, and expects the personal relationship to continue.
- The welfare analysis distinguished legal parenthood from lived family relationships and gave weight to adoption’s ability to secure the child’s identity and family status for life, rather than only until age 18.
Why It Matters
The decision illustrates how domestic adoption law can address a mismatch between parentage established abroad after international surrogacy and the parentage rules of England and Wales. A foreign order or birth certificate naming an intended parent does not itself displace the statutory rule treating the person who gave birth as the legal mother.
It also demonstrates that adoption in a surrogacy case requires more than confirmation that the technical conditions are satisfied. The court must confront the enduring effect on the child’s identity and legal relationships, compare adoption with less permanent alternatives, and determine whether adoption—not merely an order conferring parental responsibility—best serves the child throughout life.