B v C (Surrogacy: Adoption) [2015] EWFC 17
The Family Court granted an adoption order to the biological father of a child carried by his own mother under a surrogacy arrangement. The decision turned on the difference between biological and legal parenthood, the statutory exception for adoption arrangements between relatives, and the child’s lifelong welfare.
The family arrangement
A was seven months old and had lived with his biological father, B, since birth. B was a single man in his mid-twenties. His mother, C, had agreed to act as a gestational surrogate after another maternal relative withdrew for medical reasons. C’s husband, D, supported the arrangement.
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The family took advice and received individual and joint counselling at a fertility clinic licensed by the Human Fertilisation and Embryology Authority. An embryo created using a donor egg and B’s sperm was transferred to C. A was born at full term. Although B cared for him from birth, C and D were recorded as his parents on the birth certificate.
On the day of A’s birth, B’s solicitors notified the local authority of his intention to adopt. His adoption application was dated 28 August 2014. On 30 September, Mrs Justice Theis made a child arrangements order confirming that A lived with B and giving B parental responsibility. She also gave him permission to apply for adoption before the usual residence period had elapsed. C and D formally consented to adoption.
Biological fatherhood and legal parenthood
B’s genetic relationship with A did not make him A’s legal father. Under section 33(1) of the Human Fertilisation and Embryology Act 2008, C was the legal mother because she had carried the child. Under section 35(1), D was treated as the father because he was married to C and had consented to the treatment.
Section 38(1) prevented another person being treated as A’s father where section 35 applied. Section 48 gave the parenthood rules effect for all purposes. Consequently, C and D were A’s legal parents, while B was not a legal parent despite having provided the sperm and cared for A since birth.
This distinction mattered to the available application, the residence requirements and the legality of the placement. The earlier child arrangements order gave B parental responsibility, but did not itself make him A’s legal parent.
Why B applied for adoption
As the law stood when the case was decided in 2015, section 54 of the 2008 Act required two qualifying applicants for a parental order following surrogacy. B was single and could not use that route. Adoption was therefore the means by which he could become A’s sole legal parent.
Section 51(1) of the Adoption and Children Act 2002 permitted an unmarried person aged at least 21 to apply alone. B satisfied that provision. The separate requirements in section 51(4) governing adoption by a child’s mother or father did not apply to him, because he was not A’s father in law.
The same distinction affected section 42. B could not rely on the shorter residence requirement for an applicant who was already a parent. The applicable rule in section 42(5) ordinarily required the child to have had his home with the applicant for three years during the preceding five years. Section 42(6), however, allowed an earlier application with the court’s permission. That permission had already been granted.
The exception for relatives
Section 92 of the 2002 Act restricts the steps private individuals may take to arrange an adoption; contravention can constitute an offence under section 93. An exception applies to specified steps where the prospective adopter is a parent, relative or guardian of the child, or the partner of a parent.
B could not rely on being A’s legal father. He nevertheless qualified as a relative. The statutory definition in section 144 included a brother, and the court held that B was A’s legal brother: the legal parenthood rules meant that they had the same parents, C and D. The section 92(4) exception therefore applied, making the placement lawful.
The relationship also mattered to private fostering. The court explained that, without the relative exception, placing A with B would have engaged the private fostering notification requirements. The exception for intended parents proposing to seek a parental order could not assist a single applicant who was then unable to obtain one. Theis J warned of the potential criminal consequences of failing to comply with the adoption and fostering provisions. The arrangement before her was highly unusual, but lawful.
A’s lifelong welfare
Compliance with the statutory requirements did not alone determine whether adoption should be ordered. Under section 1 of the 2002 Act, A’s welfare throughout his life was the paramount consideration.
The local authority’s assessment and A’s guardian both supported adoption. A had formed a secure attachment to B, whose care was described as being to a high standard. B intended to explain A’s conception and birth in an age-appropriate way. C and D understood that adoption would end their legal parental rights and wanted to remain involved as grandparents.
Theis J regarded the close relationships within the family, including support from the wider family, as a critical feature. The parties had considered the arrangement carefully and sought advice at each stage. Their continuing support would help meet A’s lifelong needs, while adoption would give legal security to his relationship with B.
Decision
The Family Court granted B’s application and made an adoption order on 13 February 2015. The result depended on both the statutory route being available in these particular circumstances and the court’s assessment that adoption served A’s lifelong welfare.
Judgment: B v C (Surrogacy: Adoption) [2015] EWFC 17.
