AB (Surrogacy: Consent), Re

Under Human Fertilisation and Embryology Act 2008, a parental order cannot be made unless all statutory conditions are satisfied, including the surrogate’s free, unconditional and fully informed consent under section 54(6). The court cannot dispense with that consent because the children’s welfare would be better served by making the order. In exceptional circumstances, the application may instead be adjourned generally with liberty to restore. Adoption is not an equivalent substitute where the intended parents are the child’s biological parents: a parental order creates legal parentage around an existing biological lineage, whereas adoption treats the child as if born to the adopter.

C and D, the biological parents of twins born through an altruistic surrogacy arrangement, applied for parental orders under section 54 of the Human Fertilisation and Embryology Act 2008. The children had lived with them since shortly after birth. The surrogate mother, E, and her husband, F, withheld consent because of their sense of grievance following the breakdown of the parties’ relationship, although they would not oppose adoption.

All statutory criteria were satisfied except consent under section 54(6). The applicants sought an adjournment in the hope that consent might later be given or the statutory regime might change. The central issue was whether the applications should be adjourned generally despite the present inability to make parental orders.

1. The applications were adjourned generally, with liberty to restore before the judge if available. The court could not make parental orders at the hearing because section 54(6) of the Human Fertilisation and Embryology Act 2008 requires the court to be satisfied that the respondents have freely, with full understanding of what is involved, agreed unconditionally to the orders. That requirement could not be displaced by the children’s welfare.
2. The circumstances were exceptional. Without parental orders, the applicants remained the children’s biological and psychological parents but not their legal parents, while the respondents remained legal parents despite wishing to have no active role. A general adjournment preserved the possibility of a future application if consent were given or the statutory regime changed.
3. An adoption order would not provide an equivalent resolution. Referring to AB v CD [2015] EWFC 12, the judge explained that adoption treats a child as if born to the adopter, whereas a parental order creates legal parentage around an existing biological connection and removes the birth family’s legal parentage under the HFEA 2008. Those differences matter to identity and welfare.
4. The court referred to In Re A [2015] EWHC 2602 (Fam) in support of the conclusion that adoption is inappropriate because the applicants would be seeking to adopt their own biological children.

First-instance decision. No prior appellate stage is stated in the judgment.