reforming surrogacy law

In a judgment handed down this week, MacDonald J examined the applicability of international adoption rules under the Adoption and Children Act 2002 (ACA) following a cross-border surrogacy arrangement. The case highlights that intended parents who seek to obtain legal parenthood following surrogacy by way of adoption must be able to meet the precise statutory criteria, or else risk the inability to obtain legal parenthood.

Case Background

The intended parents entered into a surrogacy arrangement in the US, utilising double gamete donation. Owing to the use of donated sperm and egg, the intended parents were not able to establish legal parenthood by way of a parental order under s54 Human Fertilisation and Embryology Act 2008. This is because a key requirement contained within s54 is that the child must have a genetic link to an intended parent.

The intended parents obtained a pre-birth parentage order and a post-natal order in Florida, confirming their status as the legal parents of the child in the US. The birth certificate was issued with the intended parents listed as the legal parents. However, how parenthood is attributed overseas does not change the status of the surrogate as the legal mother in England and Wales. As such, upon returning to the UK with the surrogate-born child, the intended parents sought to obtain an adoption order. The effect of an adoption order is to remove the surrogate’s status as the legal mother, and to recognise the intended parents as the child’s legal parents. The surrogate provided her consent to the adoption order, and the social worker report recommended that the adoption order be granted, in accordance with the child’s welfare.

However, MacDonald J required specific elements of the ACA 2002 to be considered fully.

The relevant provisions of the ACA 2002

The legal counsel for the intended parents sought to rely on the earlier case of J v K (2021) to suggest that ss83, 92 and 95 of the ACA did not need to be considered in the case of international surrogacy. However, it was held that this was not a binding decision of the J v K case, so the case was listed for full argument in relation to these three provisions:

S83: restriction on bringing children in

S83 of the ACA lays out requirements that must be followed in order for a child who is not habitually resident in the British Isles to be brought into the British Isles for the purpose of adoption, and creates an offence should these requirements not be followed.

On behalf of the intended parents, it was submitted that s83 was not contravened for two reasons. First, it was argued that the child was never habitually residence outside the British Isles, having never become habitually resident in the US given they were living in temporary accommodation for 5 weeks only before coming to the UK. Second, it was submitted that the intended parents did not bring the child into the jurisdiction for the purposes of adoption, because, as a child both through assisted reproduction, they saw the child as ‘their child.’ The fact that they subsequently applied for an adoption order did not mean he had been brought into the country for the purposes of adoption, as they could have chosen not to pursue adoption proceedings.

MacDonald J ultimately did not make a determination on this issue because he was satisfied that the other two statutory restrictions had not be contravened.

S92: restrictions on arranging adoptions

S92 ACA provides that an individual must not receive a child handed over to him with a view to the child’s adoption, nor enter into an agreement for the adoption of a child. A criminal offence may be committed if these restrictions are breached.

It was argued on behalf of the intended parents that, because surrogacy is recognised in Florida, there was no adoption agreement, and neither did they ‘receive a child’ for adoption. In Florida, parentage is established via a pre- and post- birth parentage order, designed specifically to allocate parenthood following surrogacy. As such, no adoption proceedings took place in the child’s country of birth.

MacDonald J held that although the possibility of adoption was contemplated in the surrogacy agreements, none of the terms amounted to an express agreement to provide a child for adoption, nor for a child to be received with a view to adoption.

S95: prohibition of certain payments

S95 ACA states that anyone who offers, agrees, receives or makes a payments in consideration of the adoption of a child, or giving of consent required in connection with the adoption, is guilty of an offence.

Evidence was produced to show that the intended parents had paid $46,130.12 to the surrogate. It was submitted that this level of payment was in line with US surrogacy arrangements, and that the payments were for the surrogacy itself, and not in return for an agreement to adopt. As such, given that adoption was not a necessary consequence of the surrogacy arrangement, it was argued that the payments were distinct from the process of adoption.

This interpretation was accepted by MacDonald J, who held that there was no evidence to suggest that the payments were given in respect of an adoption application.

Conclusions

This case highlights the importance of statutory interpretation when considering whether an international surrogacy arrangement will be in accordance with the ACA 2002 provisions. However, even if the court had considered there had been a breach of the provisions, the child’s best interests must be the paramount consideration. There would therefore be the potential that their interests would outweigh any public policy concerns indicating against granting the adoption order. As MacDonald J stated:

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 (para 53).

On the facts of the case, it was held that it would be in the child’s best interests to have the intended parents recognised as his legal parents in this jurisdiction, removing potential complications as regards parental responsibility and recognising his lived reality.

International arrangements: a further warning

At the end of the judgment, MacDonald J took the opportunity to reiterate some of the difficulties that intended parents may encounter following international surrogacy. These include: potential exploitation of surrogates (including lack of legal advice, coercion and risks of human trafficking); conflicting laws relating to legal parentage; inability for parental status to be recognised in other jurisdictions; risks of not obtaining parentage in the child’s country of birth or the intended parents’ home country; difficulties with immigration processes; and the fait accompli that courts are often faced with when considering the child’s welfare.

Of this, he stated:

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 (para 68).

This is just one example of many recent judgments that have explicitly highlighted the risks associated with international surrogacy arrangements. The fact that the provisions of the ACA needed to be examined reaffirm earlier judicial comments that intended parents should not assume that they will be able to establish legal parenthood following surrogacy without scrutiny against the legislative framework.

The ACA was not passed with the intention to establish parenthood following surrogacy, and many of the provisions relating to international adoptions were implemented to protect against risks of trafficking. Nonetheless, if a parental order cannot be sought, adoption is the only way for intended parents to establish legal parentage: ensuring their actions align with the provisions of the ACA is crucial to ensure the intentions of the surrogacy arrangement can be realised.