AB (a child), Re

Adoption changes a child’s legal status but does not alter the historical facts of the child’s conception, pregnancy or birth. Accordingly, an overseas adoption recognised in England and Wales does not prevent the court from finding, for the purposes of Human Fertilisation and Embryology Act 2008, s 54(1)(a), that the child was carried by a woman who was not an applicant. Section 54 concerns factual jurisdictional criteria, whereas s 67 of the Adoption and Children Act 2002 concerns legal status. A parental order may therefore be made after adoption, subject to the other statutory conditions, welfare, and any necessary extension of time.

The applicants, married commissioning parents, applied for a parental order concerning a child born in the USA through gestational surrogacy. The child had been carried by a surrogate using an embryo created with the female applicant’s egg and donor sperm. Before the application, a California court had made an adoption order naming the applicants as the child’s legal parents. That adoption was recognised in England and Wales.

The application was made outside the six-month period in Human Fertilisation and Embryology Act 2008, s 54(3). The central issue was whether the retrospective legal effect of adoption under Adoption and Children Act 2002, s 67(1), prevented the court from finding that the child had been carried by a woman who was not one of the applicants.

1. Jurisdiction. The court held that an overseas adoption recognised in England and Wales did not prevent a parental order. Section 67 of the Adoption and Children Act 2002 concerns the child’s legal status. Section 54 of the Human Fertilisation and Embryology Act 2008 instead identifies factual criteria governing the court’s jurisdiction.
2. The phrase in s 54(1)(a), requiring that the child has been carried by a woman who is not one of the applicants, is deliberately expressed by reference to the factual circumstance of pregnancy. It is not expressed by reference to legal motherhood or parenthood. Adoption retrospectively treats the child in law as the child of the adopters, but does not change the fact that the child was carried by the surrogate.
3. This construction was consistent with s 33 of the Human Fertilisation and Embryology Act 2008. Adoption may remove the surrogate’s status as legal mother under s 33(2), while leaving unaffected the factual history relevant to s 54(1)(a). The court endorsed the distinction between legal parentage and parentage as a matter of fact discussed in H v R (No 1), Re L and Re M, and X v Y.
4. All other substantive requirements under s 54 were satisfied. The application was made out of time, but the reasons advanced, including residence in the USA and the applicants’ reliance on the adoption order, justified extending time under s 54(3). The surrogate and her husband consented, payments were reasonable or should be authorised retrospectively, and a parental order was in the child’s long-term welfare interests.
5. The order did not determine the legal consequences of the child having both adopted status and status under a parental order. The US adoption remained recognised as a full adoption in England and Wales.