Z (Unlawful Foreign Surrogacy: Adoption), Re

Adoption may be authorised following an unlawful commercial foreign surrogacy arrangement where the statutory requirements are met and adoption is necessary to secure the children’s welfare throughout their lives. The court must assess the children’s individual welfare, including the legal insecurity, immigration difficulties, parental ages and the absence of any less comprehensive order. Dispensing with parental consent may be justified where the surrogate parents cannot be found. An adoption order made on the exceptional facts of one case should not be treated as a precedent that similar applications will succeed. Prospective parents should obtain specialist advice and address the legal status, nationality, immigration position and welfare implications of any foreign surrogacy arrangement before proceeding.

The applicants, a couple resident in the United Kingdom, commissioned a commercial surrogacy arrangement in Northern Cyprus. Two children were born using donated eggs and sperm and carried by separate Ukrainian surrogate mothers. The applicants had no genetic relationship with either child, so they could not apply for parental orders under the Human Fertilisation and Embryology Act 2008.

The children were initially stateless and could not enter the United Kingdom with the applicants. Entry was eventually permitted following proceedings under article 8 of the European Convention on Human Rights. The applicants then sought adoption orders. The surrogate mothers could not be identified or located, and the court had to determine whether their consent should be dispensed with and whether adoption was required by the children’s welfare.

1. The court made adoption orders for both children. The applicants had no route to parental orders because neither had a genetic relationship with the children and the statutory condition in Human Fertilisation and Embryology Act 2008, s 54(1)(b) and s 54A(1)(b), was not satisfied.

2. Each child’s surrogate mother was the legal parent for the purposes of English adoption law. Consent could therefore be dispensed with under Adoption and Children Act 2002, s 52, because neither surrogate could be found. The available information consisted only of first names, and the clinic had refused to provide further information.

3. Adoption was required by the welfare of each child. The children were well cared for and securely attached to the applicants, but remained legally parentless and stateless. Adoption provided the necessary lifelong legal certainty and British nationality. A child arrangements order or special guardianship order would not provide an equivalent degree of permanence.

4. In applying the welfare principle in Adoption and Children Act 2002, s 1, the court had regard to welfare throughout each child’s life. That required attention to the applicants’ advanced ages and the likely need for long-term arrangements to support the children if age-related illness or incapacity arose.

5. The order was not an endorsement of the surrogacy arrangement. The court gave strong warnings about unlawful commercial foreign surrogacy, exploitation, statelessness and legal parentlessness. The fact that adoption was necessary on these facts created no precedent that an adoption order would be made in a future case. The court endorsed the guidance identified by Theis J in Re Z (Foreign Surrogacy) and two additional recommendations concerning early engagement with relevant government departments and their possible joinder in proceedings.