C & Anor v E (International Surrogacy and Domestic Adoption) [2025] EWFC 68 (31 March 2025)

This judgment was handed down remotely at 10.30am on 31 March 2025 by circulation to the parties or their representatives by e-mail.

Mr Justice MacDonald:

INTRODUCTION

1. The international adoption of children is closely regulated by both international and domestic legal instruments. In the case of a child habitually resident in one Contracting State to the Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption (hereafter the "1993 Hague Convention") who has been, is being or is to be moved to another Contracting State, either after his or her adoption in the State of origin or for the purposes of such an adoption in the receiving State or in the State of origin, international adoption, is regulated by that 1993 Hague Convention. Non-convention overseas adoptions are regulated in this jurisdiction by the Adoption (Recognition of Overseas Adoptions) Order 2013 and, where not covered by the Adoption (Recognition of Overseas Adoptions) Order 2013, by the common law. There is a clear domestic statutory regime governing domestic adoptions of foreign children brought into the jurisdiction of England and Wales for the purposes of adoption.

2. The international surrogacy [1] of children does not, at present, benefit from a similarly comprehensive international and domestic legal regime. This case raises issues regarding the operation of the domestic statutory regime governing adoptions of foreign children brought into the jurisdiction of England and Wales in the context of international surrogacy.

3. The court is concerned with an application by C and D for an adoption order under s.50 of the Adoption and Children Act 2002 (hereafter "the 2002 Act") in respect of G, a child born by way of surrogacy in March 2022 in the jurisdiction of the United States of America. The applicants are represented by Ms Jessica Lee of counsel and her instructing solicitor, Ms Natalie Gamble. The respondent surrogate mother, E, does not appear and is not represented. Given the issues raised in this case, the court invited the Secretary of State for Education to intervene in this matter. On 31 January 2025, following consultation with the Department of Health and Social Care (which has policy responsibility for surrogacy), the Secretary of State for Education declined to intervene in the proceedings.

4. In dealing with the issues that arise in this case, I have had the considerable assistance of a comprehensive Skeleton Argument prepared on behalf of the applicants by Ms Lee and Ms Gamble, together with a court bundle of relevant documentation. Given the issues raised in this matter, I reserved judgment and now set out my decision and the reasons for it.

5. Finally, by way of introduction, the court is acutely aware of the emotional toll on the applicants of the need for the court to investigate the complex legal issues that arise from the circumstances of G's conception and arrival in this jurisdiction, and to examine the appropriateness or otherwise in the circumstances of this case of an adoption order being made in respect of a much wanted and much loved child. Nothing that is said in this judgment, including the observations made in it regarding the difficulties that can arise in the context of international surrogacy, should be taken as a criticism of the applicants.

BACKGROUND AND SUBMISSIONS

6. The applicant mother was born in a country outside the EU. She moved to the United Kingdom in 2007 and has lived in the United Kingdom continuously since then. She became a naturalised British Citizen in April 2018. The applicant father was born in a country inside the EU. In 2012 the applicant father commenced work in the United Kingdom and has lived in this jurisdiction continuously since 2012. The applicants met in 2013 and married in 2016. The applicant father applied to naturalise as the spouse of a British Citizen in 2019. He became a naturalised British Citizen in November 2019.

7. The applicants were not successful in undertaking IVF treatment. Surgery and attempts at conception with both donor sperm and donor eggs were likewise unsuccessful. Within this context, the applicant's decided to enter into a surrogacy agreement in the United States in circumstances where they were informed that double gamete donation with surrogacy was "lawful and legally recognised in the United States and that we would be the legal parents of our child there". The applicants identified a US surrogacy agency and entered into an agreement with that agency. A copy of that agreement is before the court, dated 31 January 2021. With respect to the issue of adoption, that agreement provides at paragraph 16 that (emphasis in the original):

"16. Intended Parents further acknowledge that surrogacy and second-parent adoption are unsettled areas of the law. Intended Parents agree that Agency cannot guarantee or warrant, among other things that:

.../

e. The Gestational Carrier will not try to keep the Child, will relinquish any parental rights, or will consent to a second parent adoption."

8. With respect to gamete donation, the applicants considered information on genetic, psychological, education and family background and entered into an agreement with a Canadian woman to provide donor eggs. The egg donor agreement was signed on 31 December 2020. Once again, a copy of that agreement is before the court. The applicants did not enter into a sperm donor agreement but, having considered background, physical details, oral interviews and life outlook, purchased sperm from a frozen sperm bank. Both the egg donor and the sperm donor agreed to future contact with G. In their statement the applicants state an intention to ensure that G knows in due course the circumstances of his birth and conception and are considering resources (including those provided by the Donor Conception Network) to assist with this.

9. The applicants created and froze two embryos from the donor eggs and sperm and set about identifying a surrogate. The agency which assisted the applicants to identify suitable egg and sperm donors also matched them with the respondent surrogate mother. There was no adoption agency involved in the US in circumstances where the arrangements between the applicants and the respondent centred on a surrogacy agreement.

10. The applicants were ultimately matched with the respondent, who has three children of her own and was a first time surrogate. The applicants entered into a gestational surrogacy agreement with the respondent. Both applicants had a US attorney advising them in respect of the agreement. That agreement is entitled "Surrogacy Agreement / Preplanned Adoption (IVF/Embryo Transfer)". The agreement contains the following references to adoption:

"2.8 The Gestational Surrogate agrees to sign a consent to adoption and/or any documents necessary to effectuate the termination of any parental rights that she may have and participate in any judicial proceedings necessary for the Child to be adopted by the Intended Parents in Florida, as necessary. Each of the Parties to this Agreement has had the opportunity to consult with his or her own independent attorney. Intended Parents shall be responsible for any expenses incurred by the Gestational Surrogate should she be required to attend court in furtherance of fulfilling her obligations under this Agreement.

26.2 It is expressly understood that any payment under this Agreement in no way constitutes payment for a child or relinquishment for a child, or payment for consent to adoption or the relinquishment of any parental rights."

11. Following entering into the surrogacy agreement with the respondent, one of the applicants' embryos created from the donor egg and sperm was implanted into the respondent on 19 November 2021. Pursuant to the surrogacy agreement, the applicants made payments to the surrogate mother of expenses and compensation amounting to $46,130.32 or £35,238.57. This includes a "base compensation" payment of $36,000.00. In addition, the applicants paid a fee of $15,750.00 or £12,031.34 to the agency to arrange the surrogacy. In their application for an adoption order, which contains a Statement of Truth, the applicants state expressly that the payments were "not given in respect of an adoption application."

12. On 20 January 2022, the Circuit Court of the 17^th Judicial Circuit in Florida granted to the applicants a pre-birth parentage order. That order confirmed that the applicant's had met the legal requirements stipulated by Florida law, that they were the parents of G under Florida law and that the respondent surrogate mother was not G's legal mother under Florida law.

13. G was born on 28 March 2022. The applicants were present for G's birth and assumed care of him immediately pursuant to the pre-birth parentage order granted by the US Court on 20 January 2022. On 30 March 2022, the US Court granted a further, post-natal order confirming that the applicants were the parents of G under Florida law and that the respondent surrogate mother was not G's legal mother under Florida law to enable a birth certificate to be issued in the name of the applicants. The applicants were registered on G's US birth certificate as his parents. They moved into a rented property with G, during which time the respondent visited the family. A US passport was obtained for G and on 30 April 2022 he travelled to this jurisdiction with the applicants. G is now 2 years and 9 months old, and has been in the care of the applicants since his birth.

14. On 31 May 2022, following the return of G to this jurisdiction, a notarised A104 consent to adoption form was signed by the respondent. That order records the respondent's consent to the adoption of G by the applicants. The form states that "the only person(s) or body(ies) who has/have taken part in the arrangements for my child's adoption is/are" the applicants and the surrogate mother. By the consent form, the respondent further confirmed that she had not received any payment or reward from any person making arrangements for the adoption of G. The consent of the respondent to adoption is reiterated in her statement of evidence dated 24 December 2024.

15. On 27 June 2022, the applicants applied to the Secretary of State for the Home Department for G to be granted British Citizenship on a discretionary basis under s.3(1) of the British Nationality Act 1981 and pursuant to the Home Office's Nationality Policy: Surrogacy 2019. That policy provides expressly for British nationality to be granted to a non-biological child of a British parent when born through surrogacy if the parent is, as in this case, named as a parent on a court order or birth certificate in the place of birth. G was granted British Citizenship on 28 February 2023 and issued with a British passport.

16. On 16 March 2023 the applicants issued an application under s.42(6) of the 2002 Act for leave to apply to adopt G. On 23 April 2023, HHJ Robertson granted an order giving the applicants leave under s.42(6) of the 2002 Act to make an application for an adoption order in respect of G under s.50 of the 2002 Act. HHJ Robertson also gave the applicant's permission to disclose a copy of her order to the local authority when giving the local authority intention of their notice to adopt G and directed that, upon expiry of the notice period required by s.44(3) of the 2002 Act, the applicants file their adoption application, supported by a Skeleton Argument dealing with ss.83, 92 and 95 of the 2002 Act. HHJ Robertson also made directions with respect to the local authority's FPR 2010 r.14.11 (Annex A) report.

17. The applicants gave formal notice of their intention to adopt G on 13 June 2023. The local authority engaged an independent social worker to carry out the FPR 2010 r.14.11 assessment. The report recommends the making of an adoption order with respect to G in favour of the applicants. With respect to the purpose for which G was brought to this jurisdiction, the Annex A report provides as follows in Section B, Part 1:

"(j) Whether the child was brought into the UK for adoption, including date of entry and whether an adoption order was made in the child's country of origin.

"G was born in the United States of America to an American gestational surrogate. He had an American birth certificate and American passport issued at birth. G's American birth certificate dated 8th April 2022 shows D and C as his parents. G was brought to the UK from America on 30th April 2022. D and C applied for a British passport for G, and this was issued on 14th June 2023."

18. The applicants issued their adoption application on 20 August 2024. The applicants are seeking an adoption order rather than a parental order under s.54 of the Human Fertilisation and Embryology Act 2008 (hereafter "the 2008 Act") in circumstances where G was conceived by way of an egg donor and a sperm donor and, therefore, the applicants do not meet the requirements in s.54(1) of the 2008 Act of having used either their eggs or sperm to conceive him.

19. It was apparent when this matter first came before this court that the applicants had anticipated the court simply granting a final adoption order at that hearing, relying on what they contended was the "very similar" decision of Theis J in J v K [2011] EWFC 115. In their original Skeleton Argument, the applicants asserted through Ms Lee and Ms Gamble that Theis J had held in J v K that the court need not consider ss.83, 92 and 95 of the 2002 Act when deciding whether to make an adoption order in the context of international surrogacy. However, and in circumstances where that is not the ratio decidendi of J v K, I was concerned that the circumstances of this case may contravene the requirements of one or more of those provisions of the 2002 Act. In J v K, Theis J expressly acknowledged that such cases may arise:

"16. In her very helpful, and characteristically detailed, skeleton argument, Ms Gamble has provided the court not only with the framework to ensure that J has the requisite eligibility to make this application, but also has considered and looked at the position in relation to ss.83, 92 and 95 ACA 2002 in relation to whether they cause any reluctance on behalf of people/person in J's situation to be able to make this application.

17. For the reasons that I have just set out, I am not going to deal with those matters in detail as it is not necessary for the purposes of this judgment. There may be different cases with different circumstances where it may be necessary to go into that in more detail."

20. In the particular circumstances of this case, I accordingly listed the case for full argument and directed the applicants to file a further Skeleton Argument dealing in particular with the following questions:

i) Whether it is possible for a child not to be habitually resident outside the British Islands for the purposes of s.83 of the 2002 Act where that child was born outside the British Islands and has only ever resided in the country in which he or she was born prior to being brought into the United Kingdom.

ii) Whether entering into a surrogacy agreement in a foreign state, with the ultimate intention of applying in the jurisdiction of England and Wales to adopt the child born as a result of that agreement, constitutes:

a) Asking a person other than an adoption agency to provide a child for adoption, for the purposes of s.92(2)(a) of the 2002 Act; and/or

b) Receiving a child handed over to a person other than an adoption agency with a view to a child's adoption, for the purposes of s.92(2)(e) and s.92(2)(f); and/or

c) Entering into an agreement with any person for the purpose of facilitating the adoption of a child where no adoption agency is acting on behalf of the child in the adoption, for the purposes of s.92(2)(g).

iii) Whether entering into a surrogacy agreement in a foreign state with the ultimate intention of applying to adopt the child in England and Wales engages s.95 of the 2002 Act.

21. On behalf of the applicants, Ms Lee and Ms Gamble submit that, whilst it is unusual for the application to obtain legal parenthood for a child conceived through an international surrogacy arrangement to be for an adoption order rather than a parental order, such applications are not unprecedented and are permitted, relying on the three cases in which domestic adoption orders under the 2002 Act have been made in favour of parents through surrogacy who were not eligible to seek a parental order (namely, J v K, the circumstances of which Ms Lee and Ms Gamble submit were almost identical to the current case, B v C [2015] EWFC 17 and X v Z and B [2018] EWHC 86).

22. Within this context, Ms Lee and Ms Gamble again tentatively suggested in their Case Summary for this hearing that ss.83, 92 and 95 of the 2002 Act need not be considered in this case in circumstances where G was born by way of assisted reproduction, relying again on the decision of Theis J in J v K. If the court is not minded to agree with that submission, and is satisfied that ss.83, 92 and 95 apply, Ms Lee and Ms Gamble submit that on the evidence before the court they are not contravened on the facts of this case.

23. With respect to the requirements of s.83 of the 2002 Act, the applicants submit that they have not contravened that section for two reasons. First, they submit that G was not habitually resident outside the British Islands before he was brought to this jurisdiction for the purposes of s.83(1) of the 2002 Act, having never become habitually resident in the United States following his birth. In this regard, the applicants rely on the fact that G was immediately placed in the care of the applicant's following his birth, and spent only five weeks in the United States, in temporary accommodation, before being brought by the applicants to this jurisdiction. Accordingly, Ms Lee and Ms Gamble contend that G never became sufficiently integrated into a social and family environment in the United States and was therefore never a child "with a habitual residence outside the British Islands" for the purposes of s.83 of the 2002 Act, it being possible for a child to have no habitual residence per Re A (children) [2013] UKSC 60 at [80]. Ms Lee and Ms Gamble rely on two cases in which children born as the result of international surrogacy were held not to have a habitual residence (see W and B v H (Child Abduction: Surrogacy) [2002] 1 FLR 1008 at p.581 and W and W v H (Child Abduction: Surrogacy) (No 2) [2002] 2 FLR 252 at p.588).

24. Second, the applicants contend that G was not brought into the jurisdiction for the purposes of adoption pursuant to s.83(1)(a) of the 2002 Act. In this regard, Ms Lee and Ms Gamble submit that, within the context of the surrogacy agreement, G is a child through assisted reproduction, recognised as their legal child in the jurisdiction in which he was born and brought into this jurisdiction by the applicants because he was their child. Thereafter, Ms Lee and Ms Gamble submit that various possible legal options were available to the applicants to resolve the legal issues in this jurisdiction after G's birth, including a child arrangements order or a special guardianship order under the Children Act 1989. Alternatively, they could have made no family law application and chosen to rely on their US parentage of G. In such circumstances, the applicants submit that their later application for an adoption order does not lead to the conclusion that G was brought into this jurisdiction for the purposes of adoption. The applicants pray in aid the fact that the adoption application was not made until much later, subsequent to G arriving in this jurisdiction.

25. Ms Lee and Ms Gamble seek to place the foregoing submissions in the context of surrogacy arrangements being unregulated private arrangements in respect of which there is no process for seeking prior authorisation from UK authorities and the legal issues in respect of which are always resolved by a domestic private law application made retrospectively. Further, Ms Lee and Ms Gamble point to the fact that in circumstances where the applicants are G's legal parents in the US, combined with the fact they had no legal right to remain in that jurisdiction, meant that the applicants had no choice but to bring G to this jurisdiction.

26. With respect to s.92 of the 2002 Act, Ms Lee and Ms Gamble submit that, on their face, the agreements entered into by the applicants to conceive G, comprising the egg donation agreement dated 31 December 2020, the surrogacy agency agreement dated 3 January 2021 and the gestational carrier agreement with the respondent dated 16 April 2021, were not agreements for the adoption of a child. Within this context, they submit that the fact that surrogacy is legally recognised in the State of Florida means there was no agreement "for the adoption of a child" and nor were the applicants asking anyone else to "provide" them with a child for the purposes of s.92(2)(g) or (a) of the 2002 Act.

27. Further, in circumstances where they submit that there were various possible legal options available to the applicants to resolve the legal issues in this jurisdiction after G's birth, Ms Lee and Ms Gamble contend that the applicants did not "receive" a child "with a view to adoption" for the purposes of s.92(2)(f) of the 2002 Act. They further submit that, as a matter of fact in circumstances where the applicants were present at his birth and immediately became responsible for him, G was never in the care of anyone other than them.

28. Finally, with respect to s.95 of the 2002 Act, Ms Lee and Ms Gamble submit that the payments made by the applicants to their surrogacy agency ($15,750.00) and to the respondent surrogate ($46,130.12, of which $6,130.12 are identified expenses) is in keeping with all United States surrogacy arrangements and that such payments are lawful in the United States. Within this context, where the surrogacy agreement between the parties records expressly that the payments agreed are for the surrogacy and where, again, the adoption of G in the jurisdiction of England and Wales was not an inevitable consequence of the surrogacy arrangement the applicants entered into, the applicants submit that the payments made in the United States were factually and legally separate from the process of adoption that subsequently took place in the jurisdiction of England and Wales and cannot amount to "consideration of the adoption of a child" for the purposes of s.95(1)(a) or "in consideration of the Respondent giving her consent to" the adoption application for the purposes of s.95(1)(b).

29. Within the foregoing context, Ms Lee and Ms Gamble rely on three first instance decisions in which domestic adoption orders were made following a child being born as the result of an international surrogacy agreement, those decisions being J v K, X v Z and B [2018] EWHC 86 and Re H (Surrogacy: Step-Parent Adoption) [2023] EWFC 214. In particular, Ms Lee and Ms Gamble rely on the fact that in none of those cases did the court consider that there were any issues arising from the operation of ss.83, 92 and 95 of the 2002 Act in the context of children being brought to this jurisdiction in the context of international surrogacy.

30. Finally, Ms Lee and Ms Gamble submit that if the court determines that the applicants have breached one or more of ss.83, 92 and 95 of the 2002 Act, the court should nonetheless grant them an adoption order in respect of G in circumstances where his best interests, which are the court's paramount consideration, outweigh any public policy consideration militating against granting an adoption order in the context of an offence having been committed under the 2002 Act, mindful of the court's duty under s.3 of the Human Rights Act 1998 (hereafter "the 1998 Act") to read and give effect to the law, wherever possible, in a way which is compatible with the Art 8 rights of the applicants and G. In this regard, they pray in aid the approach of Bracewell J in Re AW (Adoption Application) [1993] 1 FLR 62. In this context, they submit that if there has been a breach of the 2002 Act it is a technical one, arising in novel circumstances on which there is no legal clarity and by reason of the complexity of the law around surrogacy. The submit, in contradistinction to Re AW (Adoption Application), in which an adoption order was made, there are no substantive concerns about how the Applicants have behaved.

RELEVANT LAW

31. Whilst the Hague Conference on Private International Law is engaged in a project examining parentage and surrogacy, as I have noted there are at present no private international instruments governing international surrogacy. The establishing or contesting of a parent-child relationship is expressly excluded from the scope of the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter the "1996 Hague Convention") by Art 4(a). In this context, there is no private international law framework within which to consider the issues that arise in this case.

32. The domestic surrogacy legislation is contained in the Surrogacy Arrangements Act 1985 (hereafter "the 1985 Act") as amended by the 2008 Act. Section 1 of the 1985 Act defines the meaning of "surrogate mother" and "surrogacy". By s.1(9) of the 1985 Act, the provisions of the Act apply to surrogacy arrangements whether or not they are lawful. Section 2 of the 1985 Act provides that no surrogacy arrangement is enforceable by or against any of the persons making it. Section 2 of the 1985 Act renders the initiation of negotiation, the participation in negotiation, the offer or agreement to negotiate or the compilation of any information for making or negotiating, of a surrogacy agreement on a commercial basis as defined by s.3(3) an offence. Section 3 of the 1985 Act deals with the prohibition on advertisements about surrogacy by any person who is or may be willing to enter into a surrogacy arrangement, or to negotiate or facilitate the making of a surrogacy arrangement, and any person who is looking for a woman willing to become a surrogate mother or for persons wanting a woman to carry a child as a surrogate mother.

33. The primary legislation governing assisted reproduction in this jurisdiction is the 2008 Act. Section 33 of the 2008 Act provides as follows with regard to the meaning of "mother":

"33 Meaning of "mother"

(1) The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child.

(2) Subsection (1) does not apply to any child to the extent that the child is treated by virtue of adoption as not being the woman's child.

(3) Subsection (1) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs."

34. Pursuant to s.34 of the 2008 Act, ss.35 to 47 of the 2008 Act determine who is to be treated as the other parent of a child carried by a woman as a result of the placing in her of an embryo or of sperm and eggs.

35. Section 54 of the 2008 Act provides the legal criteria for making a parental order where there are two applicants:

"54 Parental orders: two applicants

(1) On an application made by two people ("the applicants"), the court may make an order providing for a child to be treated in law as the child of the applicants if—

(a) 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,

(b) the gametes of at least one of the applicants were used to bring about the creation of the embryo, and

(2) The applicants must be—

(a) husband and wife,

(b) civil partners of each other, or

(c) two persons who are living as partners in an enduring family relationship and are not within prohibited degrees of relationship in relation to each other.

(3) Except in a case falling within subsection (11), the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.

(4) At the time of the application and the making of the order—

(a) the child's home must be with the applicants, and

(b) either or both of the applicants must be domiciled in the United Kingdom or in the Channel Islands or the Isle of Man.

(5) At the time of the making of the order both the applicants must have attained the age of 18.

(6) The court must be satisfied that both—

(a) the woman who carried the child, and

(b) any other person who is a parent of the child but is not one of the applicants (including any man who is the father by virtue of section 35 or 36 or any woman who is a parent by virtue of section 42 or 43),

have freely, and with full understanding of what is involved, agreed unconditionally to the making of the order.

(7) Subsection (6) does not require the agreement of a person who cannot be found or is incapable of giving agreement; and the agreement of the woman who carried the child is ineffective for the purpose of that subsection if given by her less than six weeks after the child's birth.

(8) The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of—

(a) the making of the order,

(b) any agreement required by subsection (6),

(d) the making of arrangements with a view to the making of the order,

unless authorised by the court.

(8A) An order relating to the child must not previously have been made under this section or section 54A, unless the order has been quashed or an appeal against the order has been allowed.

(9) For the purposes of an application under this section—

(a) in relation to England and Wales—

(i) "the court" means the High Court or the family court, and

(ii) proceedings on the application are to be "family proceedings" for the purposes of the Children Act 1989,

(b) in relation to Scotland, "the court" means the Court of Session or the sheriff court of the sheriffdom within which the child is, and

(10) Subsection (1)(a) applies whether the woman was in the United Kingdom or elsewhere at the time of the placing in her of the embryo or the sperm and eggs or her artificial insemination.

(11) An application which—

(a) relates to a child born before the coming into force of this section, and

(b) is made by two persons who, throughout the period applicable under subsection (2) of section 30 of the 1990 Act, were not eligible to apply for an order under that section in relation to the child as husband and wife,

may be made within the period of six months beginning with the day on which this section comes into force."

36. In the context of s.54 giving power to the court to make an order providing for a child to be treated in law as the child of the applicants, s.55 of the 2008 Act provides as follows with respect to the interrelationship between s.54 of the 2008 Act and the domestic adoption legislation:

"55 Parental orders: supplementary provision

(1) The Secretary of State may by regulations provide—

(a) for any provision of the enactments about adoption to have effect, with such modifications (if any) as may be specified in the regulations, in relation to orders under section 54 or 54A, and applications for such orders, as it has effect in relation to adoption, and applications for adoption orders, and

(b) for references in any enactment to adoption, an adopted child or an adoptive relationship to be read (respectively) as references to the effect of an order under section 54 or 54A, a child to whom such an order applies and a relationship arising by virtue of the enactments about adoption, as applied by the regulations, and for similar expressions in connection with adoption to be read accordingly.

(2) The regulations may include such incidental or supplemental provision as appears to the Secretary of State to be necessary or desirable in consequence of any provision made by virtue of subsection (1)(a) or (b).

(3) In this section "the enactments about adoption" means—

(a) the Adoption (Scotland) Act 1978 (c. 28),

(b) the Adoption and Children Act 2002 (c. 38),

(d) the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22))."

37. Whilst in this case both the jurisdiction in which the surrogacy was commissioned and the jurisdiction to which the surrogate child has been moved are parties to the 1993 Hague Convention, the applicants do not seek a convention adoption order but pursue an adoption order under the domestic adoption legislation comprising the 2002 Act.

38. Section 83 of the 2002 Act provides as follows with respect to the restrictions on bringing a child into the jurisdiction for the purposes of adoption:

"83 Restriction on bringing children in

(1) This section applies where a person who is habitually resident in the British Islands (the "British resident")—

(a) brings, or causes another to bring, a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident, or

(b) at any time brings, or causes another to bring, into the United Kingdom a child adopted by the British resident under an external adoption effected within the period of twelve months ending with that time.

The references to adoption, or to a child adopted, by the British resident include a reference to adoption, or to a child adopted, by the British resident and another person.

(2) But this section does not apply if the child is intended to be adopted under a Convention adoption order.

(3) An external adoption means an adoption, other than a Convention adoption, of a child effected under the law of any country or territory outside the British Islands, whether or not the adoption is—

(a) an adoption within the meaning of Chapter 4, or

(b) a full adoption (within the meaning of section 88(3)).

(4) Regulations may require a person intending to bring, or to cause another to bring, a child into the United Kingdom in circumstances where this section applies—

(a) to apply to an adoption agency (including a Scottish or Northern Irish adoption agency) in the prescribed manner for an assessment of his suitability to adopt the child, and

(b) to give the agency any information it may require for the purpose of the assessment.

(5) Regulations may require prescribed conditions to be met in respect of a child brought into the United Kingdom in circumstances where this section applies.

(6) In relation to a child brought into the United Kingdom for adoption in circumstances where this section applies, regulations may—

(a) provide for any provision of Chapter 3 to apply with modifications or not to apply,

(b) if notice of intention to adopt has been given, impose functions in respect of the child on the local authority to which the notice was given.

(7) If a person brings, or causes another to bring, a child into the United Kingdom at any time in circumstances where this section applies, he is guilty of an offence if—

(a) he has not complied with any requirement imposed by virtue of subsection (4), or

(b) any condition required to be met by virtue of subsection (5) is not met,

before that time, or before any later time which may be prescribed.

(8) A person guilty of an offence under this section is liable—

(a) on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding the statutory maximum, or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding twelve months, or a fine, or both.

(9) In this section, "prescribed" means prescribed by regulations and "regulations" means regulations made by the Secretary of State, after consultation with the Assembly."

39. Section 92 of the 2002 Act provides as follows with respect to the domestic restrictions on arranging adoptions and the steps preparatory thereto (the breach of which s.93 of the 2002 Act specifies as criminal offences):

"92 Restriction on arranging adoptions etc.

(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court or the family court must not take any of the steps mentioned in subsection (2).

(2) The steps are—

(a) asking a person other than an adoption agency to provide a child for adoption,

(b) asking a person other than an adoption agency to provide prospective adopters for a child,

(d) offering a child for adoption to a person other than an adoption agency,

(e) handing over a child to any person other than an adoption agency with a view to the child's adoption by that or another person,

(f) receiving a child handed over to him in contravention of paragraph (e),

(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,

(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),

(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).

(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.

(4) The condition is that—

(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or

(b) the prospective adopter is the partner of a parent of the child.

(5) References to an adoption agency in subsection (2) include a prescribed person outside the United Kingdom exercising functions corresponding to those of an adoption agency, if the functions are being exercised in prescribed circumstances in respect of the child in question.

(6) The Secretary of State may, after consultation with the Assembly, by order make any amendments of subsections (1) to (4), and any consequential amendments of this Act, which he considers necessary or expedient.

(7) In this section—

(a) "agreement" includes an arrangement (whether or not enforceable),

(b) "prescribed" means prescribed by regulations made by the Secretary of State after consultation with the Assembly."

40. With respect to the prohibition on certain payments in the context of adoption, s.95 of the 2002 Act stipulates as follows:

"95 Prohibition of certain payments

(1) This section applies to any payment (other than an excepted payment) which is made for or in consideration of—

(a) the adoption of a child,

(b) giving any consent required in connection with the adoption of a child,

(c) removing from the United Kingdom a child who is a Commonwealth citizen, or is habitually resident in the United Kingdom, to a place outside the British Islands for the purpose of adoption,

(d) a person (who is neither an adoption agency nor acting in pursuance of an order of the High Court or family court) taking any step mentioned in section 92(2),

(e) preparing, causing to be prepared or submitting a report the preparation of which contravenes section 94(1).

(2) In this section and section 96, removing a child from the United Kingdom has the same meaning as in section 85.

(3) Any person who—

(a) makes any payment to which this section applies,

(b) agrees or offers to make any such payment, or

is guilty of an offence.

(4) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine, or both."

41. With respect to the eligibility criteria and principles which apply to the making of adoption order under the 2002 Act, and in circumstances where the court has made an order pursuant to s.42(6) of the 2002 Act giving the applicants leave to apply to adopt G, the applicants have given notice as required by s.44 of the 2002 Act and the court has before it an Annex A report, the following provisions of the 2002 Act are germane in this case.

42. Sections 47 and 52 of the 2002 Act deal with the conditions for making an adoption order, including the question of consent prior to the making of an adoption order:

"47 Conditions for making adoption orders

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—

(a) that the parent or guardian consents to the making of the adoption order,

(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.

(4) The second condition is that—

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b) either—

(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(ii) the child was placed for adoption under a placement order, and

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.

(6) The third condition is that the child—

(a) is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or

(b) is free for adoption by virtue of an order made, under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22)).

(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.

(8) An adoption order may not be made in relation to a person who is or has been married.

(8A) An adoption order may not be made in relation to a person who is or has been a civil partner.

(9) An adoption order may not be made in relation to a person who has attained the age of 19 years.

(10) In this section, "Scottish permanence order" means a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4) (including a deemed permanence order having effect by virtue of article 13(1), 14(2), 17(1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009 (S.S.I. 2009/267))."

.../

52 Parental etc. consent

(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or

(b) the welfare of the child requires the consent to be dispensed with.

(2) The following provisions apply to references in this Chapter to any parent or guardian of a child giving or withdrawing—

(a) consent to the placement of a child for adoption, or

(b) consent to the making of an adoption order (including a future adoption order).

(3) Any consent given by the mother to the making of an adoption order is ineffective if it is given less than six weeks after the child's birth.

(4) The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 20, is ineffective if it is given after an application for an adoption order is made.

(5) "Consent" means consent given unconditionally and with full understanding of what is involved; but a person may consent to adoption without knowing the identity of the persons in whose favour the order will be made.

(6) "Parent" (except in subsections (9) and (10) below) means a parent having parental responsibility.

(7) Consent under section 19 or 20 must be given in the form prescribed by rules, and the rules may prescribe forms in which a person giving consent under any other provision of this Part may do so (if he wishes).

(8) Consent given under section 19 or 20 must be withdrawn—

(a) in the form prescribed by rules, or

(b) by notice given to the agency.

(9) Subsection (10) applies if—

(a) an agency has placed a child for adoption under section 19 in pursuance of consent given by a parent of the child, and

(b) at a later time, the other parent of the child acquires parental responsibility for the child.

(10) The other parent is to be treated as having at that time given consent in accordance with this section in the same terms as those in which the first parent gave consent."

43. Section 49 of the 2002 Act deals with the eligibility criteria with respect to applicants for an adoption order, including an application made by a couple:

"49 Applications for adoption

(1) An application for an adoption order may be made by—

(a) a couple, or

(b) one person,

but only if it is made under section 50 or 51 and one of the following conditions is met.

(2) The first condition is that at least one of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) is domiciled in a part of the British Islands.

(3) The second condition is that both of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.

(4) An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.

(5) References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded."

44. With respect to the granting of an adoption order, s.50(1) of the 2002 Act provides the power to make an adoption order in respect of a couple, subject to both having attained the age of 21 years. In determining an application for an adoption order in the exercise of the power conferred by s.50(1) of the 2002 Act, the court is coming to a decision relating to the adoption of a child. In the circumstances, the court is required to makes its determination by reference to the principles set out in s.1 of the 2002 Act:

"1 Considerations applying to the exercise of powers

(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.

(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.

(4) The court or adoption agency must have regard to the following matters (among others)—

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b) the child's particular needs,

(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed,] and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i) the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

(5) In placing a child for adoption, an adoption agency in Wales] must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

(6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—

(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 or 51A (or the revocation or variation of such an order),

(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.

(8) For the purposes of this section—

(a) references to relationships are not confined to legal relationships,

(b) references to a relative, in relation to a child, include the child's mother and father.

(9) In this section "adoption agency in Wales" means an adoption agency that is—

(a) a local authority in Wales, or

(b) a registered adoption society whose principal office is in Wales."

45. Pursuant to s.46(6) of the 2002 Act, before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child and, for that purpose, the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceeding.

46. Finally in respect of the domestic law regarding adoption, s.46 of the 2002 Act sets out the effect of an adoption order:

"46 Adoption orders

(1) An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter.

(2) The making of an adoption order operates to extinguish—

(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,

(b) any order under the 1989 Act or the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)),

(ca) any child assessment order or child protection order within the meaning given in section 202(1) of the Children's Hearing (Scotland) Act 2011,

(d) any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the adoption order.

"Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 or an exclusion order within the meaning of section 76(1) of that Act.

(3) An adoption order—

(a) does not affect parental responsibility so far as it relates to any period before the making of the order, and

(b) in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d).

(4) Subsection (2)(d) does not apply to a duty arising by virtue of an agreement—

(a) which constitutes a trust, or

(b) which expressly provides that the duty is not to be extinguished by the making of an adoption order.

(5) An adoption order may be made even if the child to be adopted is already an adopted child."

DISCUSSION

47. Having considered carefully the submissions made on behalf of the applicants, and the material contained in the court bundle, I am satisfied that it is in G's best interests to make an adoption order in favour of the applicants under the 2002 Act. My reasons for so deciding are as follows.

48. In the jurisdiction of the United States, the applicants are G's legal parents pursuant to the orders made by the US Court on 20 January 2022 and 20 March 2022. However, pursuant to the operation of s.33 of the 2008 Act, for the purposes of the law of England and Wales the respondent surrogate mother is the legal parent of G notwithstanding that G was born in a foreign jurisdiction as the result of an international surrogacy arrangement (see Re X and Y [2008] EWHC 3030 (Fam)). On the facts of this case, none of the provisions contained in ss.35 to 47 of the 2008 Act operate to make either of the applicants the other parent of the G, for the purposes of the law of England and Wales. In the foregoing circumstances, the respondent surrogate mother is the only legal parent of G and the only person with parental responsibility for him in the jurisdiction of England and Wales.

49. Ordinarily, applicants who have a child born by way of surrogacy (including in the United States) apply for a parental order under s.54 of the 2008 Act to remedy the non-recognition in this jurisdiction of foreign orders dealing with parentage following surrogacy. Pursuant to s.54A(1) of the 2008, that remedy is not open to the applicants in circumstances where neither applicant is biologically related to G. It is in this context that the applicants seek a domestic adoption order under the 2002 Act rather than a parental order under the 2008 Act, notwithstanding this is a case concerning parentage in the context of assisted reproduction. If an adoption order is made, then pursuant to s.67(1) of the 2002 Act, G is to be treated in law as if he was born as the child of the applicants in the same way he would be if a parental order were made under s.54 of the 2008 Act.

50. As confirmed by Theis J in E v R [2023] EWFC 214, there is no statutory requirement for the question of parentage in the context of surrogacy to be dealt with by way of a parental order under the 2008 Act:

"33. Although the more conventional order to reflect the joint intent and endeavour of creating and having a child via surrogacy is a parental order, there is no requirement for a parental order to be applied for. Particularly if there are identified welfare benefits that support a different order being made..."

51. Within this context, there is nothing in the 2002 Act or in the authorities that suggest the applicants are precluded from applying for a domestic adoption order in respect of G provided the applicants and G meet the relevant eligibility requirements contained in Part 1 of the 2002 Act. However, and in circumstances where the order the applicants accordingly seek is an adoption order under the 2002 Act, I cannot accept the submission of Ms Lee and Ms Gamble that ss.83, 92 and 95 of the 2002 Act need not be considered in this case by reason of the fact that G was born by way of assisted reproduction.

52. The wording of ss.83, 92 and 95 of the 2002 Act makes clear that the engagement of those provisions in a given case rests not on the manner by which the subject child has been conceived, but on the extent to which the actions taken by the applicants to arrange the child's handover and reception, to make payment and to bring the child into the jurisdiction were directed at the adoption of that child. Within this context, I venture to suggest that in the majority of cases involving an application for a domestic adoption order in respect to a child brought into this jurisdiction following his or her birth in the context of an international surrogacy agreement, the court will need to give consideration to whether one or more of ss.83, 92 and 95 of the 2002 Act are engaged on the facts of the case.

53. It is not the role of the Family Court to investigate and prosecute criminal offences, including those constituted by a breach of ss.83, 92 and 95 of the 2002 Act. Further, there is nothing in the wording of the 2002 Act that suggests that an adoption cannot be made under the 2002 Act where an offence under ss.83, 92 and/or 95 is committed. This is consistent with the provisions of s.1 of the 2002 Act, which stipulate that the child's best interests are the paramount consideration when deciding whether to make an adoption order. However, the breach of ss.83, 92 and 95 of the 2002 Act, if it occurs, will be relevant to the question of whether it is in the subject child's best interests to make the adoption order sought, the court being required to consider whether the child's best interests outweigh any public policy consideration against granting an adoption order where an offence under the 2002 Act has been committed.

54. In this case, the initial concern of the court was centred on the extent to which the fact that the applicants sought a domestic adoption order in respect of G at the end of the process of international surrogacy indicated:

i) That the applicants had asked a person other than an adoption agency to provide a child for adoption in contravention of s.92(2(a), had received a child handed over to any person other than an adoption agency with "with a view to that child's adoption" in contravention of s.92(2)(e) and s.92(2)(f) or had entered into an agreement with any person for the adoption of a child, or for "the purpose of facilitating the adoption of a child" in contravention of s.92(2)(g); and/or

ii) That payment had been made for or in consideration of the adoption of a child contrary to s.95 of the 2002 Act; and/or

iii) That a child had been brought to this jurisdiction for the purposes of adoption contrary to s.83 of the 2002 Act.

The court was further concerned with the apparent assumption inherent in the applicants' case that the provisions of ss.83, 92 and 95 of the 2002 Act do not apply to a child born by way of assisted reproduction and that the current authorities supported that proposition.

55. As became apparent during the course of Ms Lee's oral submissions, whether there has in this case been a breach of one or more of ss.83, 92 and 95 of the 2002 Act centres on a primary question. Namely, whether at the time they entered into the international surrogacy agreement and/or brought G to this jurisdiction the applicants had a settled intention to adopt G in the jurisdiction of England and Wales.

56. Having regard to the terms of the Agency Agreement and to the Surrogacy Agreement, it is plain that the possibility of adoption was contemplated in both agreements signed by the applicants. The Agency Agreement refers to "second parent adoption". The Surrogacy Agreement is entitled "Surrogacy Agreement / Preplanned Adoption (IVF/Embryo Transfer)" and by paragraph 2.8 of that agreement the respondent agreed to sign a consent to adoption and/or any documents necessary to terminate of any parental rights that she may have and participate in any judicial proceedings necessary for G to be adopted, albeit that that provision extended only to adoption proceedings in Florida. The applicants did ultimately issue proceedings for an adoption order after G arrived in this jurisdiction. It might further be said that where, in the circumstances of this case, adoption is the most comprehensive means of confirming the applicants' legal parentage of G in this jurisdiction, the court is entitled to consider the likelihood of the applicants intending from the outset of their planning to achieve the most secure outcome in this jurisdiction for G that is possible for him and for them.

57. Against these matters, whilst the agency and surrogacy agreements provide for the possibility of adoption in the future as regards the consent of the respondent, none of their terms constitute an express agreement to provide the applicant with a child for adoption, for the child to be received by the applicants with a view to adoption or for the adoption of the child subsequently. There was no involvement of an adoption agency in the United States. The consent of the respondent to adoption was secured only on 31 May 2022, following the return of G to this jurisdiction. The application for an adoption order was not made until 20 August 2024, after all of the immigration formalities had been completed with respect to G. Within this context, there is no evidence before the court that, prior to the applicants entering into the agreements referred to above, that they had decided to adopt G in addition to relying on their US parentage of G and in preference to pursuing legal options that were available to the applicants to resolve the legal issues in this jurisdiction after G's birth, including a child arrangements order or a special guardianship order under the Children Act 1989. Of course, having regard to the risk of an offence being committed under ss.83, 92 and 95 of the 2002 Act, it might be said that any carefully advised applicants would take care to ensure that this is the position before the court. However, the court must approach the case on the evidence before it.

58. As conceded in their statement, the applicants did make payments to their surrogacy agency, of $15,750.00, and to the respondent surrogate, of $46,130.12 including $6,130.12 in identified expenses, under the terms of the surrogacy agreement. However, the surrogacy agreement also expressly states that the agreement excluded "payment for a child or relinquishment for a child, or payment for consent to adoption or the relinquishment of any parental rights." Within this context, there is no evidence to gainsay the statement of the applicants in their application, endorsed by a Statement of Truth, that the payments were "not given in respect of an adoption application."

59. Having regard to the matters set out above, and whilst the court is left with some misgivings grounded in the likelihood of parents in the position of the applicants wishing from the outset of their surrogacy planning to achieve the most secure position in respect of legal parentage in this jurisdiction for their child, on the totality of the evidence before the court, I am satisfied that it cannot be said that at the time they entered into the international surrogacy agreement and/or brought G to this jurisdiction, the applicants had a settled intention to adopt G.

60. In this context, I am satisfied that the evidence does not demonstrate that the applicants asked a person other than an adoption agency to provide a child for adoption in contravention of s.92(2)(a), had received a child handed over to any person other than an adoption agency "with a view to that child's adoption" in contravention of s.92(2)(e) and s.92(2)(f), had entered into an agreement with any person for the adoption of a child, or for "the purpose of facilitating the adoption of a child" in contravention of s.92(2)(g), that payment had been made for or in consideration of the adoption of a child contrary to s.95 of the 2002 Act or that a child had been brought to this jurisdiction for the purposes of adoption contrary to s.83 of the 2002 Act. Given these conclusions, it is not necessary to deal, for the purposes of s.83(1) of the 2002 Act, with the question of whether G was habitually resident outside the British Islands before he was brought to this jurisdiction.

61. Given the foregoing conclusions, the respondent having given her consent to adoption and the applicants satisfying the eligibility criteria under the relevant provisions of the 2002 Act, I am satisfied that the court can proceed to undertake its best interests analysis having regard to the terms of s.1 of the 2002 Act without the need to place into the welfare balance public policy considerations arising out of a breach of ss.83, 92 and 95 of the 2002 Act.

62. Having regard to his best interests as my paramount consideration, I am satisfied that it is in G's best interests to make an adoption order in favour of the applicants. The applicants are G's legal parents in the jurisdiction of the United States. It is in his best interests for his parents to have their status as his parents in that jurisdiction reflected in law in this jurisdiction, the jurisdiction in which he is cared for full time by them. Until such orders are made, the applicant's will have no legal status in respect of G in this jurisdiction, with all the potential complications consequent on there being a lack of clarity with respect to the applicants' parental responsibility for G. An adoption order will align the legal position in this jurisdiction with the legal position in the jurisdiction in which he was born and recognising his lived reality.

63. G has an established family life with the applicants, who he has known as his parents from the moment of his birth and who he has lived with at all times since then. Within this context, G is ceasing to be a member of his original family only in the very narrowest sense. The respondent is fully supportive of an adoption order being made. G is a much loved and wanted child whose adoption has wholeheartedly been endorsed by the local authority in the statutory report it has prepared. That report, and the other evidence before the court, identifies no welfare concerns. There is no suggestion that G should be cared for by any persons other than the only parents he has ever known. Making an adoption order will give G complete and permanent legal security as a member of his existing family, not only during the course of his minority but for the remainder of his life.

64. Pursuant to s.46(6) of the 2002 Act, before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceeding. As I have noted, and to their credit, the applicants have explored with the egg donor, the sperm donor and the respondent the question of future contact with G. In their statement, the applicants state an intention to ensure that G knows in due course the circumstances of his birth and conception.

CONCLUSION

65. In the circumstances, and having regard to the range of powers available to the court, I grant an adoption order in respect of G in favour of the applicants as being in his best interests. I am satisfied that making the order would be better for G than not doing so.

66. For the reasons I have set out, the use of the domestic adoption legislation is not precluded in the circumstances that arise in this case. But I would wish to emphasise once more that where the domestic adoption legislation is relied on, applicants for an adoption order must comply with all the provisions of that legislation that are engaged on the facts of the case. There is no general principle that a child conceived in the context of international surrogacy, who is brought to this jurisdiction and thereafter is the subject of an application for a domestic adoption order, automatically escapes the provisions of ss. 83, 92 and 95 of the 2002 Act and the Adoptions with a Foreign Element Regulations 2005 by reason of the mode of their conception. Each case will turn on its own facts.

67. The essence of an international surrogacy agreement, and of the agreement in this case, is that the carrying surrogate mother agrees to hand over the surrogate child at birth to the commissioning parents and not to exercise any parental responsibility she may have in respect of the child. Within this context, and in the current absence of a comprehensive international and domestic legal regime governing it, international surrogacy can give rise to a wide range of difficulties for intended surrogate parents and for the surrogate children involved (see Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) at [3] and Re G and M [2014] EWHC 1561 (Fam) at [1]). These difficulties include, but are not limited to:

i) Evidenced concerns regarding the exploitation of surrogate mothers in the context of poverty, illiteracy, coercion, lack of legal advice and representation and risks of human trafficking (see A Preliminary Report on the Issues Arising from International Surrogacy Arrangements, Hague Conference on Private International Law, March 2012 at paras 1-2 and 48-49).

ii) An international surrogacy agreement will ordinarily involve a form of artificial fertilisation, giving rise to a potential conflict of law regarding the legal parentage of the surrogate child as between the jurisdiction in which the child is born and the country to which the child is taken following birth.

iii) Whilst the commissioning parents may be able to obtain an order conferring on them parental responsibility in the commissioned jurisdiction, it may not be possible for them to be recognised as the surrogate child's legal parents in that jurisdiction.

iv) Where the commissioning parents succeed in obtaining an order recognising them as parents in the jurisdiction in which the surrogate child was born, that status as the child's parents may not be recognised in other jurisdictions, leading to the child having different legal statuses in different jurisdictions.

v) In such circumstances, further legal steps may be required in the destination jurisdiction of the surrogate parents in order for the commissioning parents to secure parental responsibility and/or status as parents for the surrogate child and for the surrogate child to obtain immigration clearance and a passport. Once again, if this proves not to be possible then the child may labour under different legal statuses in different jurisdictions and may risk statelessness.

vi) Domestic courts dealing with applications by commissioning parents to secure parental responsibility and/or status as parents for the surrogate child are faced with a fait accompli in terms of the child's welfare in circumstances where, by the time the case reaches the court, a refusal to make an order, even in the face of incomplete information or incompletely satisfied domestic legislative requirements, would gravely compromise the child's welfare (see Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam), [2009] 1 FLR 733 at [24]).

vii) In circumstances where certain orders which are utilised to deal with the question of parentage in the context of international surrogacy do not fall within the scope of the 1996 Hague Convention, achieving an order dealing with the question of parentage in the destination State may not be recognised in another State.

68. Within the foregoing context it is vital, particularly where the circumstances of the case take it outside the scope of legislation promulgated by Parliament specifically to deal with the question of parentage following assisted reproduction, that the court maintains fidelity to all of the domestic legal principles that are engaged in a particular case. In the context of an application for a domestic adoption order, only this approach can be consistent with the paramount nature of the surrogate child's best interests pursuant to s.1 of the 2002 Act and with the surrogate child's fundamental rights. As Lowe and Nicholls note, in International Movement of Children 2^nd Edn. LexisNexis (2016), with respect to international surrogacy:

"Differences in States' domestic laws can give rise to complex questions of private international law concerning the establishment and recognition of children's parentage. These questions implicate children's fundamental human rights."

[1] Surrogacy being defined by s.1(2) of the Surrogacy Arrangements Act 1985 as "a woman who carries a child in pursuance of an arrangement made before she began to carry the child, and made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by, another person or other person".

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	England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> C & Anor v E (International Surrogacy and Domestic Adoption) [2025] EWFC 68 (31 March 2025) URL: http://www.bailii.org/ew/cases/EWFC/HCJ/2025/68.html Cite as: [2025] EWFC 68

	C and D	Applicant
	- and -
	E	Respondent

England and Wales Family Court Decisions (High Court Judges)