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Monday, March 9, 2015

Adoption order granted to single father in surrogacy arrangement

Woman acts as surrogate mother for son’s baby

In B v C (Surrogacy: Adoption) [2015] EWFC 17 (Fam), Mrs Justice Theis has granted an adoption order in favour of B, who was a single father of the child, A.  B's sperm and a donor egg had been implanted into C (who was in fact B's mother).  C was married to D (B's father).  By operation of HFEA 2008 s.31, C was the legal mother of A and her husband, D was A's legal father by virtue of HFEA 2008 s.35(1).  Accordingly B was not recognised as a legal parent and sought to establish legal parenthood (and to extinguish the parentage between A and C and D).

Since section 54(2) of the Human Fertilisation and Embryology Act 2008 excludes single commissioning parents from applying for parental orders, B applied for an adoption order. The application was supported by all of the parties, including A's Guardian and the local authority. 

This was an unusual case and the court analysed the relevant provisions of the Adoption and Children Act 2002, including possible criminal liability in respect of a breach of s.92 ACA 2002 (which effectively creates a criminal offence under s.93 ACA 2002 for private adoptions without using an adoption agency).  In this case, a criminal offence had not been committed because of s.92(3) and (4) which provides that an offence is not committed if the prospective adopters are parents, relatives or guardians of the child, or a partner of a parent of the child.  Given that as a matter of law, B was in fact the legal brother of A, the court found that B was a "relative" within the meaning of s.144 ACA 2002.

In an article for Family Law Week by Anne-Marie Hutchinson OBE and Colin Rogerson of Dawson Cornwell, which analyses the issues in this case, the authors remind practitioners to be careful to ensure that they do not advise single commissioning parent clients to embark upon a process of adoption if their clients are at risk of inadvertently committing a criminal offence contrary to the Adoption and Children Act 2002.


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